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March 24, 2026 Get Citation Alerts Download PDF Add Note

DANIEL BERG & Others v. COMMONWEALTH & Others.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-1287

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (15.9K)

• PDF

Combined Opinion

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

24-P-1287

DANIEL BERG & others1

vs.

COMMONWEALTH & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs filed this suit for declaratory relief after

the parties failed to agree about the application of "day" as

used in G. L. c. 33, § 59 (a)3, to twenty-four hour shifts. The

parties filed cross motions for judgment on the pleadings. The

Superior Court judge concluded that the applicable collective

bargaining agreements required the plaintiffs' claim to be

1Andrew Ferrara; Local S-28, International Association of
Fire Fighters, AFL-CIO; and Local S-29, International
Association of Fire Fighters, AFL-CIO. Andrew Ferrara and Local
S-28, International Association of Fire Fighters, AFL-CIO did
not file a brief or otherwise participate in this appeal.

2Executive Office of Public Safety and Security, Military
Division, and Human Resources Division.

3As relevant to this appeal, the statute was amended in
July 2016 and November 2018.
submitted to arbitration, denied the plaintiffs' motion, and

allowed the defendants' cross motion, dismissing the complaint.

The plaintiffs appealed. We affirm.

Background. Plaintiff Daniel Berg was employed as a

firefighter by the Commonwealth and was a member of Plaintiff

union Local S-29, International Association of Fire Fighters,

AFL-CIO. Berg served in the United States Air Force from

December 3, 2014, until his honorable discharge on December 3,

1. When his military obligations conflicted with his

scheduled firefighter shifts, he took military leave.

The plaintiffs were party to two collective bargaining

agreements with the Commonwealth. The first (CBA) was in effect

from January 1, 2018, to December 31, 2020. The CBA created a

grievance process for "any dispute concerning the application or

interpretation of the terms of this collective bargaining

Agreement." That grievance process ended with a "final and

binding" decision by an arbitrator, which could not "add to,

subtract from[,] or modify any provision of [the CBA]" or be

"inconsistent with applicable law." The CBA also contained a

provision addressing covered employees' entitlement to military

leave: "An employee shall be entitled during the time of

his/her service in the armed forces of the Commonwealth, and as

a member of a reserve component of the armed forces of the

United States, under Section[] . . . 59 . . . of Chapter 33 of

2
the General Laws, to receive pay therefor[], without loss of

his/her ordinary remuneration as an employee." The military

leave section of the CBA stated that it "shall be construed in

conjunction with applicable law."

The successor agreement to the CBA was a Memorandum of

Understanding (MOU), which became effective January 1, 2021,

following the expiration of the CBA. The MOU largely extended

the CBA's provisions, including the grievance process, through

December 31, 2023, but rescinded and replaced the section on

military leave. The MOU's military leave provision reads, in

full: "Military Leave shall be granted in accordance with

applicable State and Federal law."

Discussion. "We review the allowance of a motion for

judgment on the pleadings de novo." Mullins v. Corcoran, 488

Mass. 275, 281 (2021). "In deciding the motion, all facts

pleaded by the nonmoving party must be accepted as true." Id.

Whether the plaintiffs' claim must be arbitrated "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 citations omitted). Sheriff of Suffolk

County v. AFSCME Council 93, Local 419, 75 Mass. App. Ct. 340,

342 (2009). "[I]n deciding whether the parties have agreed to

submit a particular grievance to arbitration," we do not "rule

3
on the potential merits of the underlying claims." Local Union

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

Mass. 417, 420-421 (1999) (Local Union No. 1710), abrogated in

part on other grounds by Massachusetts Highway Dept. v. Perini

Corp., 444 Mass. 366, 376 n.11 (2005), quoting AT&T Techs., Inc.

v. Communications Workers of Am., 475 U.S. 643, 649 (1986)

(AT&T).

Broadly, "[p]ublic policy in the Commonwealth strongly

encourages arbitration." School Comm. of Pittsfield v. United

Educators of Pittsfield, 438 Mass. 753, 758 (2003).

"Arbitration has long been viewed as a particularly appropriate

and effective means to resolve labor disputes." Id. Still,

"arbitration is a matter of contract and a party cannot be

required to submit to arbitration any dispute which [it] has not

agreed so to submit." Local Union No. 1710, 430 Mass. at 420 -

421, quoting AT&T, 475 U.S. at 648. Where a collective

bargaining agreement contains an arbitration provision, 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.'" Local Union No. 1710, supra at 421, quoting AT& T,

supra at 650.

4
Despite this presumption, a claim subject to arbitration

under a collective bargaining agreement might still be brought

in court on several grounds, two of which are relevant here.

First, a party "need not submit to arbitration disputes over

independent substantive, personal, nonwaivable statutory

guarantees." Rooney v. Yarmouth, 410 Mass. 485, 490-491 (1991).

Second, a party may resist arbitration by showing "the most

forceful evidence of a purpose to exclude the claim from

arbitration" (quotation and citation omitted). Sheriff of

Suffolk County, 75 Mass. App. Ct. at 343-344.

We must first determine whether the plaintiffs' claim under

G. L. c. 33, § 59 (a), is a grievance under the CBA. If so, it

is subject to arbitration. The CBA defines "any dispute

concerning the application or interpretation of the terms of

this collective bargaining Agreement" as a grievance. Here, as

in Rooney, a claim under a statute incorporated by the

collective bargaining agreement "constitutes a grievance [under

the agreement]." Rooney, 410 Mass. at 491. So, we begin with

the language of the CBA and the MOU to determine whether they

incorporate § 59 (a). See Rooney, supra at 486-487, 491.

They do. As noted, the MOU affords Commonwealth employees

"[m]ilitary [l]eave . . . in accordance with applicable State

. . . law." Because § 59 (a) is applicable State law, it is

incorporated. For its part, in its military leave section, the

5
CBA expressly incorporates § 59 and states, "This Section shall

be construed in conjunction with applicable law." The

appellants assert that this express incorporation is

insufficient because the CBA -- signed prior to the statute's

2018 amendments -- incorporated § 59 (a) as it then existed, not

as later amended. Specifically, they point to language in the

CBA's military leave section directly quoting portions of

§ 59 (a) that were later changed by the 2018 amendments.

While it is true that "the incorporation could be more

precise," Rooney, 410 Mass. at 487 n.2, the requirement that the

military leave section of the CBA be "construed in conjunction

with applicable law" satisfies us that the parties to the CBA

intended that their agreement cover claims made under the

statute. See id. at 487 n.2, 490-491.

Having concluded that the CBA and MOU incorporate G. L.

c. 33, § 59 (a), we move next to the appellants' contention that

their military leave claim, though a grievance under the CBA, is

either "an independent substantive, personal, nonwaivable

statutory guarantee" such that their right to adjudication in

court cannot be waived, Rooney, 410 Mass. at 490-491, or is a

claim shown by "forceful evidence" to have been excluded from

arbitration by the parties, Sheriff of Suffolk County, 75 Mass.

App. Ct. at 343 (quotation and citation omitted). We disagree.

6
Personal, substantive, nonwaivable statutory guarantees

exist in a "narrow area of general public policy statutes" that

"set forth national or Statewide minimum standards or guarantees

and, therefore, assume a public policy purpose of advancing

social policy." DaLuz v. Department of Correction, 434 Mass.

40, 46-47 (2001). See, e.g., Barrentine v. Arkansas-Best

Freight Sys., Inc., 450 U.S. 728, 739-746 (1981) (statute

guaranteeing minimum wage and overtime); School Comm. of

Brockton v. Massachusetts Comm'n Against Discrimination, 377

Mass. 392, 399 (1979) (statute prohibiting workplace

discrimination); Newton v. Commissioner of Dep't of Youth

Servs., 62 Mass. App. Ct. 343, 347 (2004) (statute guaranteeing

timely payment of wages). Statutes providing for individual

"economic concerns" do not create such nonwaivable rights. See

DaLuz, supra at 47 (statutory right to assault pay for limited

class of Commonwealth employees not considered nonwaivable);

Rooney, 410 Mass. at 492 (statutory right to educational

incentive pay not considered nonwaivable). The benefits of

G. L. c. 33, § 59 (a), are, like the educational pay incentives

found arbitrable in Rooney, "economic" in nature, and available

to a narrow, self-selecting group of Commonwealth employees, and

thus must be arbitrated. See Rooney, supra. See also DaLuz,

supra.

7
We also conclude there is no "forceful evidence" the

parties meant to exclude military leave claims under § 59 (a)

from arbitration. In support of this exception, the appellants

point to statements made by members of the Commonwealth's

contract negotiation team they maintain show a "mutual

understanding" that such disputes would be adjudicated in court.

But the grievance process outlined in the CBA, and extended by

the MOU, requires "mutual agreement of the parties in writing"

to waive any of its requirements, including arbitration. The

appellants point to no such evidence. What is more, the CBA's

integration clause, unchanged by the MOU, dictates that the

written agreement "shall constitute the total agreement between

the parties." Although we are sympathetic to the plaintiffs'

frustration with the Commonwealth's shifting stances during

negotiation and litigation, when balanced against the

incorporation of G. L. c. 33, § 59 (a), by the CBA and MOU,

those extra-contractual statements do not rise to the level of

"forceful evidence" required to rebut the presumption of

8
arbitrability. See Sheriff of Suffolk County, 75 Mass. App. Ct.

at 343.

Judgment affirmed.

By the Court (Hershfang,
Hodgens & Smyth, JJ.4),

Clerk

Entered: March 24, 2026.

4 The panelists are listed in order of seniority.

9