372 Mass. 605 | Mass. | 1977
After extended efforts, the School Committee of Boston and the Boston Teachers Union found
1. To state the facts in more detail: With two collective bargaining agreements due to expire on August 31, 1974 (one covered teachers and nurses, the other teachers’ aides), the parties began to negotiate for successor contracts in March, 1974, and met on occasions through August. Unable to settle some one hundred issues, the parties on August 28, 1974, entered into a “Memorandum of Agreement” providing, first, that all but one of the terms of the 1973-1974 contracts should continue in effect until modified by arbitration,
Hearings continued to June 30, 1975, and on August 26 the arbitrator rendered a final award settling the terms of the 1974-1975 contracts. By the award the terms of the 1973-1974 agreements were continued except for twenty-eight items, comprising nine pages, which represented modifications of those agreements.
The municipal parties sued in the Superior Court on September 25, 1975, to vacate all or part of each such item, and the Teachers Union filed suit on October 10 to confirm the whole of the award (including the interim award). By agreement of the parties, however, the battleground was reduced to five items,
2. As to the statutory framework: G. L. c. 150E grants public employees organizational and bargaining rights (§2) with provision for determining exclusive bargaining representatives (§§ 3-4). Section 6 obligates the employer and the bargaining representative to meet at reasonable times (including meetings in advance of the employer’s budget-making process) and to “negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment, but such obligation shall not compel either party to agree to a proposal or make a concession.”*
Section 9 describes what is to happen if agreement is not reached within a reasonable time. Either party may petition the State Board of Conciliation and Arbitration (see G. L. c. 23, § 7) “for a determination of the existence of an impasse,” and if that is found, the board appoints (or the parties agree upon) a mediator to assist the parties in resolving the impasse. After a reasonable period, the mediator reports to the board. If the impasse continues, then, upon either party’s petition, or on the petition of the parties acting jointly, the board appoints or the parties select a fact finder. He transmits his findings and recommendations to the board and the parties; if the impasse continues for ten days, the report is published; if the impasse continues thereafter, the issues are returned to the parties for further bargaining.
There is, however, a separate route, the one followed in the present case — “interest” arbitration. This depends on agreement of the parties and ends in a final and binding award. Section 9, fifth paragraph, provides:
“Any arbitration award in a proceeding voluntarily agreed to by the parties to resolve an impasse shall be binding on the parties and on the appropriate legislative body and made effective and enforceable pursuant to the provisions of... [G. L. c. 150C], provided that said arbitration proceeding has been authorized by the appropriate legislative body or in the case of school employees, by the appropriate school committee.”
And under c. 150C (which by its own terms governs grievance arbitration under the provisions of a private-sector collective bargaining agreement) we find provision for
3. On a superficial view, it seems that all things were done entitling the award, including the particular items of the award in question, to be confirmed without more. The parties, after long negotiation, had reached deadlock. They agreed in a formal writing to submit themselves to arbitration; the submission agreement was duly endorsed by the city council; and it is not disputed on this appeal that that agreement extended to the particular items. No objection is taken to the arbitrator’s conduct of the hearings before him. There is no criticism of the award on these points as being beyond the bounds of reason.
The School Committee’s principal contention on this appeal is that the award was beyond the arbitrator’s authority because the whole arbitral process under G. L. c. 150E, § 9, fifth paragraph (quoted above), must be restricted to matters as to which the parties are obligated to negotiate in good faith under § 6 (also above quoted) and the items involved were not of that kind. Of course § 9, fifth paragraph, does not say this in terms. It is suggested, however, that the thought is conveyed by the word “impasse.”
The courts have held under the National Labor Relations Act that a party violates his duty to bargain in good faith if he insists to the point of impasse on a matter as to which the statute does not impose a duty to bargain — a so called “nonmandatory” or “permissive” matter. This is the doctrine of NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958), which has been endlessly elaborated in private-sector litigation.
As indicated, the draftsmen of § 9, fifth paragraph, omitted any words confining voluntary interest arbitration to the field of mandatory bargaining. That the arbitration should extend more broadly is the result to which the draftsmen would have been led by their practical good sense. Many labor contracts reached in the usual course include, quite naturally, a miscellany of provisions thrown up by experience which are not at the core of bargaining over wages, hours, and the like. As the record proves, such has been conspicuously the case in contracts over the years between the present parties. Being at a standstill on a variety of subjects, the parties would have thought it odd indeed if they had been told that their Memorandum of Agreement under § 9, fifth paragraph, which reflected the actual dimensions of irreconcilable dispute, was in part nugatory. On that view, it is extremely doubtful that they would have taken the step of submitting their quarrels to binding arbitration.
In a larger sense, it seems evident that if voluntary interest arbitration is to make an appeal to the parties and carry out its purpose of avoiding protracted strife, it must, optimally, imitate the range of the negotiation which it supersedes. The interplay and “tradeoff” of mandatory and other items which are described as “the very fabric of effective collective bargaining,” Oil Workers Int’l Local 3-89 v. NLRB, 405 F.2d 1111,1117 (D.C. Cir. 1968), have their place in voluntary arbitration of the terms of a labor contract and will tend to improve and make more livable the arbitral result. Of course, if for any reason the parties prefer a more limited arbitration, they can provide for it by agreement. Here the parties agreed in the contrary sense.
We add that there is a general policy favoring voluntary arbitration in the labor field
4. The School Committee argues, secondarily, that if agreements for interest arbitration under § 9, fifth paragraph, are not confined to mandatory subject matter, still some nonmandatory subjects must fall outside that statutory provision because they are so central to educational policy that a school committee cannot relinquish control over them even with its own consent and even to an impartial arbitrator. Cf. School Comm. of Hanover v. Curry, 369 Mass. 683 (1976); School Comm. of Braintree v. Raymond, 369 Mass. 686 (1976) (deciding in the circumstances of the cases that abolition of a school position was not a proper subject of grievance arbitration). We do not dispute the School Committee’s proposition, and we share a concern that public officials should not regard § 9, fifth paragraph, as an easy way out of their responsibilities to the electorate.
Examining the items in question here, we think none has the prerogative quality that should exclude submission to arbitration if the parties so agree.
The “health and welfare” fund dealt with in Item 120 (first paragraph) dated back to the collective bargaining agreement that became effective on September 1, 1968. The School Committee is required to contribute to the fund, from which payments are made to “covered teachers” for their health and welfare, including benefits for hospitalization and surgery. The award vested administration of the fund in five trustees appointed by the Teachers Union, a change from the existing arrangement which provided also for five trustees consisting of the members of the School Committee as from time to time constituted. This was a change in the handling of an element of compensation. Cf. Kerrigan v. Boston, 361 Mass. 24, 28-29 (1972). The employment relationship, not educational policy, was implicated. If there may be some doubt whether the matter could be called a subject of mandatory bargaining (see
As to the severance pay question (Item 119), there had been a longstanding dispute about defaults under the collective agreements. Indeed an action seeking a declaration regarding severance pay for the period from September 1, 1969, through August 31, 1974, was pending in the Superior Court when the award came down. The “final best offer” had proposed payment on certain terms and disposal of the action, and the award required payment on other terms. If this matter failed of being one for mandatory bargaining because it related to persons who were not current employees (see Allied Chem. & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co. Chem. Div., 404 U.S. 157 [1971]), it was nevertheless not a prerogative subject beyond an arbitration intended to substitute for collective bargaining. (Claimed failures to abide by past labor contracts are commonplace matters considered in current bargaining.
Under Item 178, the award stated: “Each pupil reading two or more years below grade level will be provided with a remedial reading program. Sufficient remedial reading specialists will be employed to develop and conduct such programs.” This was by no means a curricular innovation, as appears from the terms of the collective agreements running back to 1966 which treated the same subject (and
Judgment affirmed.
As will be indicated below, “interest” arbitration involves the settlement of the terms of a contract between the parties, whereas, in the more familiar “grievance” arbitration, the subject is claimed violation or interpretation of the terms of an existing contract.
The one change was a salary increase of 5y2% effective from September 1, 1974.
The union membership had ratified the agreement some days after August 28.
An additional increase of 4% to a total of 9%%.
The difficulty arose on a question of the length of the work day. The School Committee sought to restrain the issuance of the interim award on the ground that the submission agreement did not authorize such piecemeal disposition. Relief was denied. No appeal was taken.
On September 29, 1975, the parties concluded agreements for 1975-1976, effective from September 1, 1975. They agreed in this settlement to continue the terms of the 1973-1974 agreements as altered by the
There is no argument here with respect to Item 96, which places “guidance advisors” into salary “Group II” (thus increasing their pay), or Item 130, which provided that certain positions (“[a] 11 rated positions filled on an acting basis”) should be filled through the appropriate rating procedure within ninety days except in certain enumerated situations.
This statement of the scope of collective bargaining differs from that contained in the former law, G. L. c. 149, § 1781 (see St. 1965, c. 763, §2). That law provided that the parties “shall confer in good faith with respect to wages, hours and other conditions of employment,”
See generally, C. Morris, The Developing Labor Law 379-439 (1971); Stewart & Engeman, Impasse, Collective Bargaining and Action, 39 U. Cin. L. Rev. 233 (1970); Comment, Subjects Included within Management’s Duty to Bargain Collectively, 26 La. L. Rev. 630 (1966).
General Laws c. 150C, § 1, inserted by St. 1959, c. 546, § 1, refers to the arbitration of any controversy “including but not restricted to any controversy dealing with rates of pay, wages, hours or other terms and conditions of employment.” (
See John Wiley & Sons v. Livingston, 376 U.S. 543, 549-550 (1964); Chattanooga Mailers Local 92 v. Chattanooga News-Free Press Co., 542 F.2d 1305, 1314 (6th Cir. 1975).
The State Labor Relations Board in IAFF, Local 1009 & Worcester, 2 M.L.C. 1239, 1243 (Dec. 15, 1975), suggested in dictum that the same should hold for firefighters, the other class to which forced arbitration applied.
There is nothing in the argument that the change of trustees violated the terms of the trust and was thus invalid. The trust instrument reserved to a majority of the trustees the power to amend its terms by a writing signed by them, and this was sufficiently complied with by the submission agreement eventuating in the award. The fund, it should be added, was created as a result of collective bargaining and has remained a feature of the bargaining ever since.
An argument based on G. L. c. 203, § 12 (removal of trustees by the court), is out of point, as the statute does not affect amendment of a trust in the manner provided in the trust instrument.
The suggestion that the award on this point was illegal as a “gratuity” is unrealistic and fails in the light of Fitchburg Teachers’ Ass’n v. School Comm. of Fitchburg, 360 Mass. 105, 107 (1971).
Although not, of course, binding on us, the views of the State Labor Relations Commission in the following cases (all involving claims of unfair labor practice for refusal to bargain in good faith) will be found interesting: Boston School Comm. & Boston Teachers Local 66, 3 M.L.C. 1148 (April 15, 1977); Danvers & Local 2038, IAFF, 3 M.L.C. 1141 (April 6, 1977); Groton School Comm. & Groton Teachers Ass’n. 1 M.L.C. 1221 (Dec. 17, 1974). See also West Hartford Educ. Ass’n v. DeCourcy, 162 Conn. 566, 576-577 (1972); Susquehanna Valley Cent. School Dish at Conklin v. Susquehanna Valley Teachers’ Ass’n, 37 N.Y.2d 614 (1975); Board of Educ. of Union Free School Dist. No. 3 v. Associated Teachers of Huntington, Inc., 30 N.Y.2d 122 (1972).