7 Mass. App. Ct. 41 | Mass. App. Ct. | 1979
This is an application brought by the school committee of the town of Burlington (committee) under the provisions of G. L. c. 150C, § 2(6), to stay the arbitration of two grievances advanced by the Burlington Educators Association (association) under the arbitration provisions of the collective bargaining agreement between the parties which covered the period from September 1, 1972, through July 1,1974. The case was heard and determined by a judge of the Superior Court on the association’s motion for summary judgment. The judge denied the motion and, acting under the provisions of the last sentence of Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974), entered judgment staying both arbitrations. The association has appealed. See School Comm. of Agawam v. Agawam Educ. Assn., 371 Mass. 845, 846 (1977).
The agreement contained a salary schedule which expressed all the various teachers’ salaries on an annual basis. Article III B ("Work Year”) provided (with an exception not here material) that "[f]or the duration of this contract, the work year of teachers covered by the salary schedule ... shall be no more than ... one hundred and eighty-five (185) [work days] ... and not more than one hundred eighty-two (182) student school days.” Article VIIF provided that in calculating deductions from salaries for unauthorized absences "one (1) day will be considered 1/185 of the annual contract amount.” A supplement, entitled "Problems Resulting from the Strike,” forbade certain kinds of disciplinary reprisals against teachers who had participated in the strike and con
In January of 1973 the committee docked the pay of each teacher who had participated in the strike an amount equal to 10/185ths of his annual rate of pay. At some point (the actual sequence of events is not clear from the record) the committee requested the State Board of Education (Board) to "waive” ten of the school days required by the regulations referred to in note 2 hereof. On April 27, 1973, the Board denied the committee’s request but granted an exemption of five school days with
Sometime following the action of the committee in docking each striking teacher the equivalent of ten days’ pay (again the actual sequence of events is not clear from the record) the association processed two separate grievance claims through the grievance procedure to the point of filing written demands for arbitration with the AAA. The committee countered by filing the present application to stay both arbitrations.
We now proceed to a consideration of the two demands for arbitration, having in mind the rule that the provisions of G. L. c. 150C, § 2(d)(2), authorize a judge of the Superior Court to stay a proposed arbitration if it is clear that an award which the arbitrator is requested to make would impinge directly on some power or duty which a school committee cannot lawfully delegate to an arbitrator. See Berkshire Hills Regional Sch. Dist. Comm. v. Gray, 5 Mass. App. Ct. 686, 688-691 (1977), S.C., 375 Mass. 522, 525-528 (1978). Contrast School Comm. of Danvers v. Tyman, 372 Mass. 106, 111-115 (1977).
1. The first grievance complains of the committee’s holding back ten days’ salary from each teacher following what the association euphemistically characterizes as a "ten (10) day work stoppage because of a breakdown in communication with the Burlington School Committee.”
We construe the first request above as calling for the arbitrator to determine the number of days which the striking teachers should be permitted to work during the 1972-1973 school year. The power to determine the number of days that the schools shall be open in any school year is specifically reserved to a school committee by the second sentence of G. L. c. 71, § 37.
The quality of education can be rendered meaningless if the quantity is subject to manipulation. It would seem
The second request of this demand appears to be susceptible to two different interpretations.
The other possible interpretation, one that might be adopted by an arbitrator pursuant to his power to identify and define grievances (see Wachusett Regional Dist. Sch. Comm. v. Wachusett Regional Teachers Assn., 6 Mass. App. Ct. 851,851 [1978]), is that the association is seeking a decision that the striking teachers are entitled to be paid for working on any days which the committee might tack onto the originally scheduled school closing dates in response to the Board’s determination of the minimum number of school days which would be required in the circumstances (see note 2, supra). We have already noted that the record contains a suggestion that such days may have been tacked on but is silent as to whether the committee paid the teachers for work performed on such days.
We concur in the reasoning and result of those cases and find no obstacle to the arbitrability of any claim for compensation in this case which might be based on the teachers’ having been required to work on any school days which the committee may have tacked onto the originally scheduled school closing dates.
2. The second grievance advanced by the association is specifically directed to the committee’s action in docking the striking teachers’ pay for the two days the schools were closed pursuant to the temporary restraining order. The "Remedy Sought” is far from clear, and once again there appear to be two possible interpretations. One is that the association sought to have the arbitrator order the committee to reschedule the two days in the remaining school year. If this is the correct interpretation, then the arbitration was properly stayed because the association was seeking to have the arbitrator exercise what we have already determined to be the committee’s nondelegable power to determine the number of days the schools would be open.
As already noted, the association’s first statement of grievance characterized the entire ten-day period "[f]rom September 20, 1972 to October 3, 1972” as a "work stoppage because of a breakdown in communication with the Burlington School Committee.” The association’s answer to the complaint admits that the association took a strike vote on September 19 and is explicit on the point that "no vote was taken to end the strike” before the teachers returned to work on October 4, which was the day after the collective bargaining agreement was signed. The same chronology is emphasized in the affidavit relied on by the association in support of its motion for summary judgment. There is no contradiction of the assertion in the affidavit of the superintendent of schools that the committee was restrained from holding school "while the strike continued.”
We think the judge properly concluded that there was no genuine dispute as to whether the teachers were on strike on the two days (October 2 and 3) which were the subject of the association’s second demand for arbitration. If this interpretation of that demand is the correct one, the judge properly stayed the arbitration for the
The case is remanded to the Superior Court for a summary determination of the question whether there is a "controversy” (G. L. c. 150C, § 2[b][2]) as to pay for teachers working on days which may have been tacked onto the regularly scheduled school closing dates. If the court determines that there is such a controversy, the present judgment is to be modified so as to require the committee to arbitrate that controversy. Compare School Comm. of Southbridge v. Brown, 375 Mass. 502, 506 (1978). If the court determines that there is no such controversy, the present judgment is to stand. Costs of appeal are not to be awarded to any party.
So ordered.
The reference here was to regulations promulgated by the State Board of Education under what now appear as the tenth and eighteenth paragraphs of G. L. c. 15, § 1G, as amended through St. 1978, c. 151, and under which the Board required every school committee to "schedule not less than 185 days in the school calendar” and that "[t]he school year shall contain not less than 180 days of school during which both pupils and teachers shall be present and engaged in regular teacher-learning activities. Failure of a school committee to comply with the regulations or to obtain a specific exemption therefrom can result in a loss of a portion of the State and Federal aid to which the committee would otherwise be entitled. See G. L. c. 71, §§ 1,4, and 4A.
A "grievance” was defined as "a claim based on an event or condition which involves the interpretation, meaning or application of this Agreement or any amendment or supplement thereto.” Article I ("Recognition”) C provided: "Except as specifically abridged, delegated, granted or modified ... by Section 178[?] of Chapter 149 of the General Laws of Massachusetts, all of the rights, powers and authority held by the School Committee prior to the effective date of said Agreement are retained by the School Committee and the exercise of said rights, powers and/or authority shall not be subject to the grievance procedure and/or arbitration.” The intended reference may have been to G. L. c. 149, § 1781, as in effect prior to St. 1973, c. 1078, § 1.
The material portions of § 37 are as follows: "[The school committee] shall have general charge of all the public schools ... It may determine, subject to this chapter, the number of weeks and the hours during which such schools shall be in session, and may make regulations as to attendance therein.” The words "subject to this chapter” refer to the provisions of G. L. c. 71, §§ 1,4, and 4A, which have already been adverted to in note 2, supra.
If there is anything to the contrary in Koch v. Bellefonte Area Sch. Dist., 3.6 Pa. Commw. Ct. 438 (1978), we decline to follow it.
We pass the question whether an order by an arbitrator that the parties must negotiate would have been contrary to public policy as expressed in the provisions of G. L. c. 149, §§ 178G-178N, as in effect prior to St. 1973, c. 1078, § 1.
If other interpretations are possible, they have not been brought to our attention by counsel.
We reach this conclusion without reliance on the provisions now found in the third paragraph of G. L. c. 150E, § 15, inserted by St. 1973, c. 1078, § 2, which, by reason of the provisions of St. 1973, c. 1078, §§ 5 and 7, have no application to the circumstances of the present case. That paragraph reads: "No compensation shall be paid by [a public] employer to [a public] employee with respect to any day or part thereof when such employee is engaged in a strike against said employer, nor shall such employee be eligible to recover such compensation at a later date in the event that such employee is required to work additional days to fulfill the provisions of collective bargaining agreement.”
The record does not contain a copy of the restraining order.