LOCAL UNION No. 1710, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO VS. CITY OF CHICOPEE [Note 1]

LYNCH, J. This is an appeal by Local Union No. 1710, International Association of Fire Fighters (union), from the denial by a Superior Court judge of its motion to compel arbitration. G. L. c. 150C, s. 2 (a). The union claims that the judge's decision regarding the timeliness of the grievance was a ruling on "procedural" rather than "substantive" arbitrability in violation of the plain meaning of G. L. c. 150C, s. 2 (a), settled State and Federal law, and public policy. The union also disputes the judge's finding of fact regarding the timeliness of the grievance. We granted the union's application for direct appellate review, and we affirm the decision of the Superior Court judge.

1. Facts and procedural history. Paul Loranger and Thomas Stefanik (grievants) were fire fighters who had been employed by the city of Chicopee (city). Each suffered what were eventually ruled to be work-related injuries rendering them incapable of performing their duties as fire fighters [Note 2]. While the two grievants were absent from work, before a determination that the injuries were work-related, the city did not place them on injured leave, but charged their absences to their accumulated sick or vacation leave [Note 3]. Loranger claims that he questioned Chief Robert Nunes about the coverage and was told that the city would reimburse him for the sick leave when it was clear that Loranger's injury was work-related. The city granted the grievants' work-related disability retirements on November 22, 1996.

The grievants were members of the union which had a collective bargaining agreement (agreement) with the city. Article 25.05 of the agreement requires the city to compensate retiring fire fighters "for accumulated unused sick leave credited to their account [according to a formula]." When the grievants retired, their compensation did not include reimbursement for the sick (or vacation) leave they used to cover their absences from Work [Note 4].

Article 5.01 of the agreement provides for a final and binding

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arbitration when grievances remain unresolved "as to the meaning, application or interpretation of this Agreement relating to wages, hours, standards of productivity or performance or other terms and conditions of employment." On January 27, 1997, sixty-seven days after the grievants retired, the union filed grievances on their behalf arguing that the grievants should have been reimbursed for the sick or vacation leave they used during their work-related illness. The city refused either to proceed with the grievances or to allow them to be submitted to arbitration. The union then moved to compel the city to arbitrate, pursuant to G. L. c. 150C, s. 2 (a).

The city argued that the agreement's arbitration clause did not apply to this case for two reasons. First, it argued that, because the grievants were retired when the grievances were filed, they were no longer members of the union and thus not covered by the agreement. Second, the city claimed that the union's grievance was not timely because it was not filed within seventy-five days of the date the grievants became aware of a grievance, as required by the agreement. The city maintained that the grievances arose while the grievants were being denied injured leave. The city stated that the union had to file grievances within seventy-five days of the date they were first denied injured leave, not when they received their retirement compensation.

A Superior Court judge ruled that the union did have standing to sue under the agreement on behalf of retired employees because the grievances arose while the grievants were members of the union. The judge then ruled that the city could not be compelled to arbitrate over these particular claims because the grievances were not timely. The judge found that the grievants were aware or should have been aware that they had a grievance long before they retired. [Note 5] The judge rejected the union's estoppel argument as to the issue of Chief Nunes's assurances to Loranger that the city would reimburse him. [Note 6]

2. Analysis. The statute applicable to this case, G. L. c. 150C, s. 2 (a), states that, if one party to a collective bargaining agree-

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ment refuses to arbitrate, the aggrieved party may request a court order to arbitrate, and "[t]he court shall order arbitration unless (1) the opposing party denies the existence of the agreement to arbitrate; or (2) the claim sought to be arbitrated does not state a controversy covered by the provision for arbitration; provided, that an order for arbitration shall not be refused where a dispute concerning the interpretation or application of the arbitration provision is itself made subject to arbitration . . . . In either event the court shall proceed summarily to the determination of the issue so raised and shall, if it finds for the applicant, order arbitration; otherwise, the application shall be denied." [Note 7]

In applying this and other provisions of the labor statute, Massachusetts courts have looked to a series of United States Supreme Court cases for guiding principles, including AT&T Techs., Inc. v. Communications Workers, 475 U.S. 643 (1986) (AT&T); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); and United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960) [Note 8]. (The latter are collectively known as the "Steelworkers Trilogy.") See, e.g., Old Rochester Regional Teacher's Club v. Old Rochester Regional Sch. Dist. Comm., 398 Mass. 695, 700 (1986); School Comm. of Southbridge v. Brown, 375 Mass. 502, 504 (1978); School Comm. of Danvers v. Tyman, 372 Mass. 106, 113 (1977); Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347, 351 (1997); Massachusetts Mun. Wholesale Elec. Co. v. Local 455, Int'l Bhd. of Elec. Workers, 28 Mass. App. Ct. 921, 922 (1989).

These United States Supreme Court decisions have established a set of principles governing arbitration that are most clearly set out in AT&T, supra. The first principle is that "arbitration is a

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matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id. at 648, quoting United Steelworkers v. Warrior & Gulf Navigation Co., supra at 582. See John Wiley & Sons v. Livingston, 376 U.S. 543, 547 (1964); School Comm. of Boston v. Boston Teachers Union, Local 66, 372 Mass. 605, 613 (1977), citing Massachusetts Nurses Ass'n v. Lynn Hosp., 364 Mass. 502 (1974) ("there is an understandable attitude of wariness about arbitration forced on a party").

The second principle is that the question whether an agreement creates a duty to arbitrate is "undeniably an issue for judicial determination . . . [u]nless the parties clearly and unmistakably provide otherwise." AT&T, supra at 649, citing United Steelworkers v. Warrior & Gulf Navigation Co., supra at 582-583, and cases cited. The courts determine whether a contract to arbitrate exists partly because of contract law and partly because of a public policy favoring arbitration. "The willingness of parties to enter into agreements [to arbitrate] would be 'drastically reduced,' however, if a labor arbitrator had the 'power to determine his own jurisdiction.' " AT&T, supra at 651, quoting Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1509 (1959).

The third principle is that, "in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims . . . [including] determining whether there is particular language in the written instrument which will support the claim." AT&T, supra at 649-650, quoting United Steelworkers v. American Mfg. Co., supra at 568. The final principle is that, "where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that '[a]n 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 . . . Such a presumption is particularly applicable where the clause is . . . broad" (emphasis added). AT&T, supra at 650, quoting United Steelworkers v. Warrior & Gulf Navigation Co., supra at 582-583 [Note 9]. The provisions of G. L. c. 150C, s. 2 (a), embody these principles because a court must order arbitration, except

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under two conditions that reflect concerns over contract principles.

For this case, it is important to note that the Steelworkers Trilogy and the AT&T case all involved very broad arbitration clauses. A broad arbitration clause is known as a standard arbitration clause [Note 10] which essentially states that "all disputes" regarding the agreement are subject to arbitration. See AT&T, supra at 645 n.1 ("any differences arising with respect to the interpretation of this contract or . . . any obligation" [unless excluded]); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 594 (1960) ("any differences 'as to the meaning and application' of the agreement"); United Steelworkers v. Warrior & Gulf Navigation Co., supra at 576 ("[s]hould differences arise . . . as to the meaning and application of the provisions of this Agreement"); United Steelworkers v. American Mfg. Co., supra at 565 & n.1 ("all disputes between the parties as to meaning, interpretation and application of the provisions of this agreement' "). See also Cape Cod Gas Co. v. United Steelworkers, Local 13507, 3 Mass. App. Ct. 258, 262 (1975), quoting United Steelworkers v. American Mfg. Co., supra. The principles established by the Steelworkers Trilogy and the AT&T case lead us to conclude that, where the arbitration clause is not broad, courts must be sure that the parties contracted to arbitrate the issue at hand. See AT&T, supra at 648,649.

In this case, the union seeks to minimize the issue of the breadth of the arbitration clause and argues that it has not found any case which focused on this issue. We disagree with the union's contention that State and Federal courts do not base their decisions on the scope of the arbitration clause. Further, none of the cases the union relies on supports its contention.

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The reason courts have not focused on the scope of the arbitration clause is precisely because the arbitration agreements were broad enough to allow the courts to find a contract to arbitrate. For example, the union cites Bartley, Inc. v. Jefferson Parish Sch. Bd., 302 So. 2d 280 (La. 1974), but there the court first inquired whether there was an agreement to arbitrate. Id. at 281. The court concluded there was an agreement to arbitrate because there was a broad arbitration clause covering '[a]ll claims, disputes and other matters . . . arising out of, or relating to, this Contract." Id. at 282. Once it concluded there was an agreement to arbitrate the court allowed procedural issues to be considered by the arbitrator. Similarly, a New York court said in City Sch. Dist. of Poughkeepsie v. Poughkeepsie Pub. Sch. Teachers Ass'n, 35 N.Y.2d 599, 607 (1974), that, although the arbitration clause at issue was not " 'broad' . . . nonetheless, it contemplates arbitration as 'to the interpretation and the application. of the provisions of this agreement insofar as the same may be necessary for a determination of the grievance.' Since the 10-day limitation of time is found in a provision of the agreement, it would seem that a decision as to its application would be procedurally necessary to a determination of the grievance here." See Lewiston Firefighters Ass'n, Local 785 v. Lewiston, 354 A.2d 154, 164 (Me. 1976) ("[a]ll claims, demands, disputes . . . arising under, out of or in connection with . . . this agreement"); Union County Sch. Dist. No. 1 v. Valley Inland Pac. Constructors, Inc., 59 Or. App. 602, 608 (1982) (all claims and disputes within certain limits); Local Div. No. 812 of Clarksburg, Amalgamated Transit Union v. Central W Va. Transit Auth., 179 W. Va. 31, 33 n.1, 35 (1987) ("[a]ll grievances" "broad" language; thus employee's discharge falls within terms and conditions provision of agreement) [Note 11].

Furthermore, the United States Supreme Court ruled in International Union of Operating Eng'rs, Local 150 v. Flair Bldrs., Inc., 406 U.S. 487 (1972), that the broad nature of an arbitration clause, which stated that "any difference" between the parties would be subject to arbitration, allowed a laches defense to be decided by the arbitrator. Id. at 488. "There is nothing to

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limit the sweep of this language or to except any dispute or class of disputes from arbitration. In that circumstance, we must conclude that the parties meant what they said - that 'any difference,' which would include the issue of laches . . . should be referred to the arbitrator . . ." (emphasis added). Id. at 491.

In this case, however, the arbitration clause cannot be called broad because it contains words of limitation. Article 5.01 defines grievance as "a complaint as to the meaning, application or interpretation of the Agreement relating to wages, hours, standards of productivity or performance or other terms and conditions of employment" (emphasis added). Further, art. 5.06 states that, while the decision of the arbitrator is final and binding, "the arbitrator shall have no power to add to, subtract from or modify any of the terms of this Agreement."

Because of the words of limitation contained in the agreement, the question before us is whether the seventy-five day filing deadline falls within the "terms and conditions" portion of the arbitration clause. We conclude that it does not. The opinions which have addressed terms and conditions of employment apply the phrase to concrete issues about the way an employer interacts with its employees on the job. See Lynn v. Labor Relations Comm'n, 43 Mass. App. Ct. 172, 178 (1997) (terms and conditions encompass matters arising between employer and employee). See also Massachusetts Nurses Ass'n v. Lynn Hosp., 364 Mass. 502, 508 (1974) (agency service fee for nurses who did not join union part of terms and conditions of employment); School Comm. of Medford v. Labor Relations Comm'n, 8 Mass. App. Ct. 139, 140 (1979) (health and life insurance within terms and conditions under statute). Cf. West Bridgewater Police Ass'n v. Labor Relations Comm'n, 18 Mass. App. Ct. 550 (1984) (unscheduled overtime not term of employment).

The union asks that we read G. L. c. 150C, s. 2 (a), differently, and conclude that it limits a court's review of issues to those of "substantive arbitrability." It requests that we look at the underlying claim for sick time reimbursement the two grievants have, and conclude that it is that "claim" that is covered by the arbitration agreement and thus it cannot be denied arbitration under G. L. c. 150C, s. 2 (a). However, even the union admits that the dispute is not whether the underlying claim is arbitrable. The dispute revolved around the city's claims that these particular grievances were not arbitrable because of un

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timeliness [Note 12]. The city's claim is, essentially, that it did not contract to arbitrate these particular grievances. We conclude it is proper for a court to consider timeliness when the level of inquiry is whether there was a contract to arbitrate a particular grievance. See School Comm. of Southbridge v. Brown, 375 Mass. 502, 504 (1978) (proper function of court is to determine whether parties agreed to arbitrate particular dispute).

The union urges us to adopt a broad based rule that would categorize any timeliness issue as a "procedural" issue always subject to arbitration. The union claims that its proposed rule, encompassed in G. L. c. 150C, s. 2 (a), is the rule the United States Supreme Court set out in John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964), and is indorsed by most States. The union further claims that Massachusetts Mun. Wholesale Elec. Co. v. Local 455, Int'l Bhd. of Elec. Workers, 28 Mass. App. Ct. 921, 922 (1989), on which the judge relied, was incorrectly decided by the Appeals Court because it did not indorse the Wiley approach. We address each of these arguments in turn.

The union is correct that G. L. c. 150C, s. 1, demonstrates the Legislature's intent to have parties resolve grievances through arbitration. But the plain language of G. L. c. 150C, s. 2 (a), does not require that all procedural issues are a question for the arbitrator. The two statutory provisions properly balance concern for contract law with a policy favoring arbitration.

We also do not accept the union's assertion, based on Wiley, that the procedural rule it proposes is in keeping with Federal law. Wiley did not adopt a blanket rule that all procedural issues are a matter for the arbitrator. In Wiley, a union had an agreement with one company at the time it merged with Wiley. The question before the United States Supreme Court was whether Wiley, as the successor company, could be bound by the agreement and required to arbitrate, pursuant to the terms of the agreement. The Court ruled that union rights survived the merger. John Wiley & Sons v. Livingston, supra at 549-551. There was a procedural issue tied up with the substance of the agreement and the Court ruled that, if the two were tied together,

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then it made no sense to separate them [Note 13]. However, the Court also said, "[o]nce it is determined [by the court] that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on the final disposition should be left to the arbitrator" (emphasis added). Id. at 557.

Not only did Wiley not establish a blanket rule that all procedural issues must be decided by an arbitrator, but also, in International Union of Operating Eng'rs, Local 150 v. Flair Bldrs., Inc., 406 U.S. 487 (1972), the United States Supreme Court declined an opportunity to extend the rule favoring arbitration to a case with facts similar to this case. There a company tried to prevent an order compelling arbitration by arguing laches. The union had waited over five years before filing a grievance when the agreement said that grievances should be filed within forty-eight hours after a dispute was not settled. Id. at 489. The union urged the Court to decide that, even if the parties had "not agreed to arbitrate the laches issue, Wiley requires that the arbitrator resolve the question as an integral part of the underlying contract dispute." Id. at 490-491. The Court declined to create such a rule: "We need not reach the question posed by petitioner, for we find that the parties did in fact agree to arbitrate the issue of laches here." Id. at 491.

In this case, the union also argues that virtually every State except Maryland indorses the union's version of the Wiley rule [Note 14]. The union cites a myriad of State court decisions from other

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jurisdictions without distinguishing the breadth of the arbitration clause at issue. Our examination of cases cited by the union reveals that, while it is true that the cases do cite Wiley for the proposition that procedural issues should be decided by an arbitrator, most cases involved broad arbitration clauses [Note 15]. See International Bhd. of Teamsters, Local 959 v. King, 572 P.2d 1168, 1171 (Alaska 1977) (any grievance); Skidmore, Owings & Merrill v. Connecticut Gen. Life Ins. Co., 25 Conn. Supp. 76, 80, 88 (1963) (all questions under agreement); Wilmington v. Wilmington Firefighters Local 1590, 385 A.2d 720, 722 n.1 (Del. 1978) (disputes or misunderstandings concerning application or interpretation of agreement); Carter v. Cathedral

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Ave. Coop., Inc., 658 A.2d 1047, 1049 (D.C. 1995) (agreement stating arbitration panel decides procedural issues); Bartley, Inc. v. Jefferson Parish Sch. Bd., 302 So. 2d 280, 282 (La. 1974) ("all claims, disputes and other matters . . . arising out of, or relating to, this Contract"); Lewiston Firefighters Ass'n, Local 785 v. Lewiston, 354 A.2d 154, 164 (Me. 1976) ("[a]ll claims, demands, disputes . . . arising under, out of, or in connection with . . . this agreement"); City Sch. Dist. of Poughkeepsie v. Poughkeepsie Pub. Sch. Teachers Ass'n, 35 N.Y.2d 599, 607 (1974) (arbitration clause "contemplates arbitration as 'to the interpretation and the application of the provisions of this agreement' "); Union County Sch. Dist. No. I v. Valley Inland Pac. Constructors, Inc., 59 Or. App. 602, 608 (1982) (all claims and disputes within certain limits); School Comm. of Pawtucket v. Pawtucket Teachers Alliance AFT Local 930, 120 R.I. 810, 812 (1978) (grievance which arises "out of contractual application, meaning or interpretation"); Local Div. No. 812 of Clarksburg, Amalgamated Transit Union v. Central W. Va. Transit Auth., 179 W. Va. 31, 33 n.1, 35 (1987) ("[a]ll grievances" is "broad" language, thus employee's discharge falls within terms and conditions provision of agreement). One case involved a vaguely worded procedural deadline. See Boys Club of San Fernando Valley, Inc. v. Fidelity & Deposit Co., 6 Cal. App. 4th 1266, 1275 (1992) (notice of demand within "reasonable time").

Given the significant distinction between narrow and broad arbitration clauses, we also disagree with the union that Massachusetts Mun. Wholesale Elec. Co. v. Local 455, Int'l Bhd. of Elec. Workers, 28 Mass. App. Ct. 921, 922 (1989) (MMWEC), was improperly decided. MMWEC also involved a timeliness issue. The Appeals Court inferred a narrow arbitration clause because the "defendant made no argument in the Superior Court

or in [the Appeals Court] that the [agreement] contained a provision for arbitration of disputes concerning the interpretation or application of the arbitration clause. " Id. The agreement in MMWEC did contain an arbitration clause that outlined a grievance process and contained an explicitly worded waiver clause: "No matter will be submitted to an impartial arbitrator after sixty-five (65) days from the date of the incident. Should either party fail to complete its steps in the grievance procedure, that party waives its rights to invoke arbitration." Id. The Appeals Court relied on this court's decisions in Old Rochester Regional Teacher's Club v. Old Rochester Regional Sch. Dist. Comm.,

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398 Mass. 695, 700 (1986), and School Comm. of Southbridge v. Brown, 375 Mass. 502, 504 & n.2 (1978), to conclude that, because the agreement did not contain a provision concerning the interpretation or application of the arbitration clause itself, it was for the judge to decide whether there had been compliance with time constraints. MMWEC, supra at 922 [Note 16].

Here the arbitration clause contains words of limitation that leave to the court rather than the arbitrator the task of determining whether the city contracted to arbitrate the meaning of the seventy-five day limit.

The union raises concerns about the impact of our decision. Those concerns are unfounded. Our approach is a balance between contract concerns and a policy favoring arbitration. The approach allows arbitration where the clause is broad and denies it when the parties have contracted to limit the scope of arbitration. By this balanced approach, we differentiate from the Maryland rule which is to make all procedural issues a matter for the court, even when there are broad arbitration clauses. See Chesapeake Beach v. Pessoa Constr Co., 330 Md. 744 (1993); Frederick Contractors, Inc. v. Bel Pre Med Ctr, Inc., 274 Md. 307, 314 (1975) [Note 17].

The union argues that, even if we conclude that the language of G. L. c. 150C, s. 2 (a), allows the court to decide the issue of timeliness, we should nevertheless overturn the judge's decision to reject the union's estoppel argument. The union argues that our principle of disfavoring estoppel against public officials, relied on by the judge in his decision, is inapplicable here

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because previous decisions were concerned with negating the requirements of statutes designed to protect the public interest. See Phipps Prods. Corp. v. Massachusetts Bay Transp. Auth., 387 Mass. 687, 693 (1982) (court will not apply estoppel against public entities where to do so would negate requirements of laws protecting public interest); A P East, Inc. v. Assessors of Westborough, 40 Mass. App. Ct. 912, 913-914 (1996), and cases cited (estoppel against public officials disfavored where reliance was on oral statement and statute set deadline for tax abatement application). The union's argument that there is no public interest to protect in this case, even if correct, is beside the point. There was ample support for the judge's findings that both grievants were aware or should have been aware that they had grievances when the city refused to treat the absences as injured leave, not when the grievants retired. In addition the judge found that neither party addressed the issue whether Chief Nunes had the authority to make such assurances [Note 18].

Because we conclude that the language of the arbitration clause excludes the issue of timeliness, we affirm the decision of the Superior Court judge.

So ordered.