School Committee v. Boston Teachers Union, Local 66

25 Mass. App. Ct. 903 | Mass. App. Ct. | 1987

The arbitrator’s reinstatement order is beyond his authority because it purports to designate grievants “to positions they had not previously occupied and for which the school committee had not found them qualified .’’School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. 651, 656 (1985). School Comm. of Peabody v. International Union of Elec., Radio & Mach. Workers, Local 294, 19 Mass. App. Ct. 449,453-454 (1985). The statutory sources upon which the decisions rest are G. L. c. 71, §§ 31 and 38. See also Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. 522, 526-529 (1978); School Comm. of New Bedford v. New Bedford Educators Assn., 9 Mass. App. Ct. 793, 800-801 (1980); School Comm. of Norton v. Norton Teachers’ Assn., 23 Mass. App. Ct. 1002, 1004-1005 (1987). Compare School Comm. of West Bridgewater v. West Bridgewater Teachers’ Assn., 372 Mass. 121, 122-127 (1977).

Cases involving suspension, .dismissal, removal, or termination, upon which the union relies, are not pertinent because the reinstatement awards held to be authorized all involved restoration to jobs which the teachers in those cases had previously held. Those inapplicable cases are Old Rochester Regional Teachers’ Club v. Old Rochester Regional Sch. Dist. Comm., 398 Mass. 695, 701 (1986); School Comm. of Waltham v. Waltham Educ. Assn., 398 Mass. 703, 706 (1986); and School Comm. of Needham v. Needham Educ. Assn., 398 Mass. 709, 714 (1986). The arbitrator’s award purports to place teachers in positions which are not vacant, which are different from the positions previously occupied by the grievants in terms of the skills and temperament required and for which the grievants were found not to have the necessary qualities to the same degree as those selected. The nondelegable duty of the committee to ascertain the qualifications of teachers to be appointed to positions (G. L. c. 71, § 38) is directly implicated. See School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. at 654-655, and cases cited.

Interpretation of the collective bargaining agreement was properly committed to arbitration. For that reason we do not review so much of the arbitrator’s award as determined that: the school committee violated the collective bargaining agreement in the manner in which it (1) introduced Project Promise; (2) failed to qualify the five grievants for participation in it; and (3) assigned them to other duties. School Comm. of Norton v. Norton Teachers’ Assn., 23 Mass. App. Ct. at 1003. In light of that determination, the arbitrator may consider if any useful remedy, other than reinstatement, ought to be awarded. Affording the grievants priority for selection to other positions for which they apply, and for which they are otherwise qualified, is among the possibilities, but we do not purport to limit the ingenuity of the arbitrator in designing a remedy, if any further remedy is to be invoked.

James T. Grady for the defendant. Daniel J. Pagnamo, Special Assistant Corporation Counsel, for the plaintiff.

So much of the judgment as vacated the award of reinstatement is affirmed. The judgment shall be amended to remand the case to the arbitrator, for consideration of a remedy, if any, for the violations of the collective bargaining agreement determined by the arbitrator to have occurred.

So ordered.