Sch. Comm, New Bedford v. New Bedford Educators
Sch. Comm, New Bedford v. New Bedford Educators
Opinion of the Court
This is an appeal by the New Bedford Educators Association (NBEA) from a judgment, pursuant to G. L. c. 150C, § 11(c)(3), vacating an arbitration award entered as a result of a grievance filed by Aurora Zola, alleging a failure by the plaintiff school committee to follow agreed upon procedures in filling a vacancy in the position of guidance counselor. The award ordered the plaintiff to appoint Zola to the next vacancy, to pay her the salary differential
We summarize the relevant portions of the collective bargaining provisions and the facts set forth in the arbitrator’s opinion. Article XIII of the agreement required, inter alia, that “[a]ll vacancies in positions in which a salary differential is applicable . . . shall be posted in every school . . . clearly setting forth a description and the qualifications for the position.”
The dispute arose in 1974 after the plaintiff posted a notice of a vacancy in the position of guidance counselor at the high school. The notice set forth requirements for the position. These requirements, which were the ones the school committee had used in the past, were:
“1. Master’s Degree with major in guidance or counseling.
“2. Massachusetts certification as guidance counselor.
“3. Minimum of three (3) years successful experience in classroom teaching.
“4. Demonstrated skill in ability to relate positively with students, professional staff and administrators.”
Zola, a tenured teacher, and three other persons applied. On December 9, 1974, Maria Smith, a black candidate, was chosen to fill the position. At the time of her appointment, Smith did not meet any of the first three requirements contained in the notice; she did not possess a master’s degree with major in guidance or counseling; she did not yet have her Massachusetts certification as a guidance counselor; and she had had only slightly more than two years of classroom experience. Zola was the only one of the four applicants who met the degree, certification and teaching requirements. In fact, she had six years of classroom experience, and evidence was introduced to show that she possessed the skill and ability to “relate positively” with students and staff. There was no evidence to the contrary.
In the meantime, a second vacancy occurred in the position of guidance counselor, and the revised qualifications of July were reposted in August, 1975. Maria Smith reapplied and was reappointed in November, 1975, as guidance counselor. There is no indication that Zola applied for either the vacancy created by Smith’s removal or the second vacancy.
Zola’s grievance was submitted to arbitration in accordance with the collective bargaining agreement. The parties agreed upon the submission of the following issues: “Did the School Committee violate Article XIII of the Collective Bargaining Agreement by not. appointing [Zola] to the position of Guidance Counselor? If so, what shall the remedy be?” After hearings, the arbitrator found, inter alia, that at the time of Smith’s appointment, she did not possess three of the four posted qualifications. He concluded that the school committee had not complied with article XIII when it appointed Smith in December, 1974, in violation of its own notice. The arbitrator also found that once the notice was “posted containing the required qualifications, the Committee could not unilaterally in the middle of the road, so to speak, change them or tailor-make them” to justify its
NBEA in appealing the vacating of the award argues that the judge was wrong in ruling that the arbitrator had exceeded his powers.
1. Arbitrability of grievance. We must first determine whether a proper question, not in excess of the arbitrator’s authority under G. L. c. 150C, § 11(a)(3), was submitted to arbitration. The school committe argues that the issue before the arbitrator is Zola’s initial “entitlement” to the position of guidance counselor, a question it claims is nonarbitrable because it is one statutorily reserved to the school committee under G. L. c. 71, §§ 37 and 38. While we concur that the appointment of Zola to the position of guidance counselor is not a proper subject of arbitration, see part 2 infra, the issue as posed by the school committee ignores entirely the question whether the school committee failed to follow the posting provisions for filling vacancies it had agreed upon in the collective bargaining agreement. See Dennis Yarmouth Regional Sch. Comm. v. Dennis Teachers Assn., 372 Mass. 116, 118-119, 120 (1977). The latter question is one which is amenable to arbitration. While a school committee may not surrender its authority to make certain nondelegable managerial decisions, such as tenure, it may nevertheless “bind itself to follow certain procedures precedent to the making of any such decision,” and it may “permit arbitration of a claim that it has failed to follow those procedures.” School Comm. of Danvers v. Tyman, 372 Mass. 106, 113-114 (1977). School Comm. of West Bridge-
The questions submitted to arbitration in School Comm. of West Springfield v. Korbut, 373 Mass. 788, 790-791 (1977), were almost identical in form
We conclude that it would be error, in determining the question of arbitrability, to focus solely on the question whether the appointment itself is a proper subject of ar
The arbitrator decided that issue and determined that the school committee had violated those provisions when it appointed Smith to the position of guidance counselor in 1974, in disregard of the certification, teaching and degree requirements which it had posted. He also decided that the grievance continued despite the posting of revised qualifications in July and August. These decisions, including his ruling that the committee could not in midstream “change . . . or tailor-make” the qualifications to justify Smith’s appointment, were not in excess of his powers. See School Comm. of Cambridge v. LaChance, 3 Mass. App. Ct. 710 (1975). They are final and are not subject to review. School Comm. of Danvers v. Tyman, 372 Mass, at 115. School Comm. of Boston v. Boston Teachers Local 66, 378 Mass. 65, 69 (1979). Thus, it is not appropriate for a court to consider the school committee’s contention that the 1975 posting of qualifications rendered Zola’s 1974 grievance moot. As we have stated, the decision as to whether the
2. Appointment of Zola. We next determine whether the arbitrator intruded into the school committee’s exclusive domain by fashioning a remedy which included the appointment of Zola to the next vacancy in the position of guidance counselor at the high school. See School Comm. of Danvers v. Tyman, 372 Mass, at 114; School Comm. of Southbridge v. Brown, 375 Mass, at 506; School Comm. of Boston v. Boston Teachers Local 66, 378 Mass, at 69. What was here mandated was an initial appointment to a position requiring professional skills as well as certification under G. L. c. 71, § 38G. The order on its face carried no limit of time,
3. Compensation. As noted earlier, the arbitrator awarded Zola the pay differential applicable to the position of guidance counselor for the school years 1974-1975 and 1975-1976, a period prior to the time of his decision. In addition, as to the future, he awarded Zola the pay differential until such time as she would be appointed to the position of guidance counselor. His award was consistent with the view, rejected by us, that Zola was entitled to be appointed, and the purpose of the award was to make her whole. See, e.g., School Comm. of Braintree v. Raymond, 369 Mass, at 691.
In this case, we consider the award of future compensation which was to continue for the full period of nonappointment an invalid intrusion into the area statutorily reserved to the school committee. We recognize that the arbitrator’s order of compensation is “separable from his unauthorized determination” that Zola be appointed. See School Comm. of Braintree v. Raymond, 369 Mass, at 691.
4. Disposition. As we have held both the order of appointment and the award of compensation for an indefinite future period invalid, the matter must be remanded to the arbitrator to fashion such a remedy as he considers appropriate but which must fall “short of intruding into the school committee’s exclusive domain.” School Comm. of Danvers v. Tyman, 372 Mass, at 114. While he cannot order Zola’s permanent appointment, the arbitrator may require that Zola’s application be considered in accordance with the practices set forth in the collective bargaining agreement. Id. Bradley v. School Comm. of Boston, 373 Mass, at 59. He may also, insofar as he deems practicable, set other conditions to insure that Zola’s application will be “appraised in good faith and on equal terms with all others.” School Comm. of Southbridge v. Brown, 375 Mass, at 506. We do not suggest that the arbitrator may
The arbitrator may also award damages. The award for a two-year period was within his discretion. See School Comm. of Braintree v. Raymond, 369 Mass, at 691. ¡However, if he should determine that additional damages are appropriate, he must recognize that an award cannot be one which has the effect of compelling appointment. Arbitration may not award relief which offends public policy or is contrary to statute. Eager, The Arbitration Contract and Proceedings § 121.6 (1971). “However, within these bounds and within the limits of the agreement to submit to arbitration, arbitrators have broad authority to establish a balance between the parties.” Lawrence v. Falzarano, 380 Mass, at 28.
Accordingly, the judgment is reversed, and the case is remanded to the Superior Court to enter a new judgment which vacates paragraphs 1 and 3 of the award and orders the matter remanded to the arbitrator for the determination of an appropriate remedy.
So ordered.
For the year 1973-1974 the differential was $400.
Article XIII also provided, “The Committee agrees to give due weight to the professional background and attainment of all applicants, the length of time each has been in the school system and other relevant factors. In filling such vacancies preference will be given to teachers already employed by the Committee.” As to this latter clause, see Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. 522, 528 n.6 (1978).
As provided in Article XXVI A, “A grievance is a claim based upon an event or condition which affects the welfare and condition of employment of any employee or group of employees and the interpretation, meaning or application of any term of this [ajgreement.”
In Korbut the questions, as stated by the Supreme Judicial Court were: “(1) whether the school committee had violated the collective bargaining agreement in failing to reappoint Korbut, and (2) if so, what the appropriate remedy should be.” Id. at 790-791.
In addition, it appears in the record that a vacancy in the position of guidance counselor only occurs when a guidance counselor leaves or retires, or when a new position is created. Thus, even if the appointment is not a tenured one, compare Korbut, 373 Mass, at 797, it can be assumed that the appointment is not one of short-term or limited duration.
Dissenting Opinion
(dissenting in part). I am wholly in accord with the court’s holding that an initial appointment to a teaching position falls within the ambit of a school committee’s nondelegable authority over educational policy conferred by G. L. c. 71, §§37 and 38. That holding is consistent with recent decisions defining a school committee’s nondelegable prerogative to include appointments to prin-cipalships and other management positions, Berkshire Hills
My disagreement with the majority’s disposition of this case stems from my different interpretation of the question that was submitted to arbitration. Zola was the only applicant for the position of guidance counselor who possessed all the posted qualifications and understandably felt aggrieved when her application was passed over in favor of one (Smith) who did not possess all the posted qualifications. Zola invoked the grievance procedure, seeking to be appointed herself. Her claim seems to have had two aspects: first, that Smith’s appointment violated the provision of the collective bargaining agreement requiring that qualifications be posted and that they be adhered to in hiring; and, second, that Zola, as the only applicant possessing all the posted qualifications, should have received the appointment. The first aspect was settled at the second stage of the grievance procedure, when the superintendent ruled that posted qualifications had to be adhered to. The school committee abided by that determination, revoking Smith’s appointment and beginning the appointive process anew. At the superintendent’s level of the grievance procedure the first, or procedural, aspect of Zola’s contention was settled and dropped out of the case.
The question Zola took on to arbitration (the fourth stage of the grievance procedure) was her separate and distinct
In my opinion the trial judge acted correctly in vacating the award in its entirety on the ground that the matter put
The majority’s strained interpretation of the claim inevitably permeates their treatment of the award. On the one hand they hold that the questions submitted to the arbitrator for decision were arbitrable; on the other they vacate the first paragraph of his award, which was simply his affirmative answer to the first of the two questions submitted, in haec verba. How can it be that the question put to the arbitrator lay within his jurisdiction, but a simple affirmative answer to it exceeded his jurisdiction? Similarly, the arbitrator’s award of compensatory damages to Zola for the delay in her appointment is vacated on the ground that she is not entitled to appointment, but the case is ordered returned to the arbitrator for a redetermination of damages based on some other, unspecified theory. Is it not basic, however, that the legal sufficiency of the arbitrator’s theory of damages is not before us for review, but only the question of his jurisdiction? Greene v. Mari & Sons Flooring Co., 362 Mass. 560, 563 (1972). School Comm. of Braintree v. Raymond, 369 Mass. 686, 691 (1976).
It seems to me that the majority also err in suggesting that it lay within the competence of the arbitrator to bar the
As the reference was beyond the scope of what the school committee could lawfully agree to submit to arbitration, I think the trial judge was right in holding that the arbitration award must be vacated in its entirety, and I find no basis for resubmission to the arbitrator for reassessment of damages. I would therefore affirm the judgment.
The majority seem to analogize the question submitted to arbitration in this case to the one submitted in School Comm. of West Springfield v. Korbut, 373 Mass. 788 (1977), on the basis of a semantic similarity between the questions. Functionally the cases are very dissimilar. In Korbut a “coordinator of language arts” was demoted from that position without compliance with the notice and hearing requirements of the collective bargaining agreement. It was clear that the alleged breaches of the agreement concerned these procedural omissions and that the grievant’s claim that the committee violated the agreement “in failing to reappoint Korbut” meant, in context, in the process of failing to reappoint Korbut. Here there is no such ambiguity: the school committee is alleged to have violated the agreement “by” failing to appoint Zola. A secondary level of distinction is that the Korbut case dealt with retention of a position already held. This case, like the Berkshire Hills case, deals with an initial appointment to a vacant teaching position, a function which I, like the majority, think belongs nondelegably to the school committee.
The arbitration took place more than a year before publication of either of the appellate decisions in the Berkshire Hills case, suggesting that Zola (like Gray in the Berkshire Hills case, who relied on a substantially identical provision) may have read Article XIII as opening the school committee’s prerogative with respect to academic appointments to arbitral control. The decision of this court was issued on November 17, 1977, 5 Mass. App. Ct. 686 (1977), and the decision of the Supreme Judicial Court (cited in the text) on June 26,1978. The arbitration award ordering that Zola be appointed was issued on August 3, 1976.
Our focus must, of course, be on the question actually framed for submission to arbitration, not on the arbitrability of other questions which could have been framed arising out of the underlying facts. It is the arbitrator who will determine the facts; the issue of arbitrability of the claim may be determined by a court on a motion to stay arbitration under G. L. c. 150C, § 2(b), before there has been any determination of facts by an arbitrator. The principle on which the court relies, that arbitration should not be stayed “unless no lawful relief conceivably can be awarded by the arbitrator” (School Comm. of Danvers v. Tynan, 372 Mass, at 113), applies to cases where the claim submitted for decision is arguably within the scope of what the parties contracted to submit (or, as in this case, were permitted by law to submit) to arbitration. It has no application here, where the question is unambiguous and squarely within the nondelegable area.
The “tailoring” of the qualifications to enable the school committee to appoint Smith was based on a judgment by the school committee that an important educational purpose would be served by adding a black guidance counselor to the high school faculty, a judgment with which the New Bedford Educators Association and, at a latter stage, the arbitrator, indicated they agreed in principle. Smith’s appointment, however, could not have been made except by revising the posted qualifications. The record does not suggest that this was other than an educational policy judgment.
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