12 Mass. App. Ct. 189 | Mass. App. Ct. | 1981
The school year 1972-1973 was the first year of operation of the regional vocational school run by the Southern Worcester Regional Vocational School District (district). The last collective bargaining agreement between the district and the union which represents the school’s teachers expired on August 31, 1974. On August 13 a tentative agreement was reached by negotiators for a new contract for the school year 1974-1975. That agreement was overwhelmingly rejected by the teachers on September 6. Further negotiations broke off abruptly on September 16. In November both the union and the district filed charges of prohibited labor practices with the Labor Relations Commission (commission). The relations between the parties following September 16 and the ultimate disposition of their respective complaints are set out in Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897 (1979) (the earlier case).
During the period March 31 through July 24, 1975, eight teachers
Following some procedural skirmishes, hearings on the complaint were commenced on September 4, 1975, and ultimately concluded on December 16, 1977.
1. The district complains of a number of procedural irregularities.
(a) It argues with considerable force that the provisions of G. L. c. 150E, § 11, contemplate that proceedings such
(b) The district urges that it was error for the commission to deny its motion to sever the various charges and to proceed on them seriatim. The argument makes light of the factual background of strained labor negotiations and subsequent union activism which was material to the question of the motives of the committee and the school’s superintendent-director (superintendent) and which was common to all the charges. It was not until quite late in the proceedings that counsel for the district made any effort (and then in only two instances) to limit the application of evidence to a particular charge. The commission, in its deci
(c) The commission had issued its decision in the earlier case more than a year prior to the conclusion of the hearings in the present case. Without prior notice to anyone (see G. L. c. 30A, § 11 [4] and [5]) the commission repeated verbatim in its decision in this case the bulk of its findings of fact in the earlier case concerning the breakdown in the labor negotiations and subsequent union activism. The commission purported to act on principles of collateral estoppel. We find it unnecessary to decide whether there was error. The facts found in the earlier case assumed significance only as they served to illuminate the atmosphere which prevailed between certain teachers and the union on the one hand and certain members of the committee and the superintendent on the other and thus to lay the basis for an inference that the actions of the committee and the superintendent had been motivated by antiunion bias. A careful review of the evidence in the present case discloses that the critical findings from the earlier case were supported by the evidence in the present case. In particular, the evidence in this case was sufficient to warrant findings of all the facts discussed in the court’s opinion in the earlier case. Again, we are not persuaded of prejudice.
2. There are two basic obstacles which stand in the way of affirming the commission’s present decision. The first is that Stephen and Maryann Yurek have failed to sustain their respective burdens of proving that a majority of the members of the committee were motivated by antiunion bias when they voted not to employ either for another year. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 226, 232 (1978). The following is a summary of the evidence relevant to this problem.
At that meeting one of the members (Abbey) moved the appointment of Maryann for a fourth year; the motion was defeated by a vote of six to five against.
At a meeting of the committee on April 23, Abbey expressed the sentiment that the vote as to Maryann had been motivated by “her or her husband’s involvement with the [union].” There was no evidence that any of the other members of the committee expressed agreement with that sentiment. See and compare School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. at 263-264, 266-267. On July 7, 1975, the committee voted to terminate Stephen
It follows from the foregoing analysis that both Yureks failed to present a prima facie case of unlawful discrimination (see Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 135-136 [1976]; Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 851) because neither adduced sufficient evidence to warrant an inference of unlawful discrimination on the part of a majority of the members of the committee. See again Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. at 226, 232. The consequence is that so much of the decision as grants relief to the Yureks must now be set aside.
3. Each of the other six teachers
We trust the commission will not be too quick to draw adverse inferences from the timing of Gorman’s recommendations
4. The district, following an exhaustive analysis of the evidence, has concluded that the commission overlooked the third step for determining motive which was delineated in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. at 136. We need not pass on the correctness of that conclusion at this juncture. At two places in its present decision, one in the portion where the commission instructed itself as to the applicable law and the other near the conclusion, the commission indicated that it was employing the “dominant purpose” analysis of motive, which is nothing more than another name for the “but for” analysis. If the commission makes it clear in any further decision that it has employed the “dominant purpose” analysis, it need not expressly articulate the third step of the Wheelock College analysis. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. at 227 n.8; Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 851; International Bhd. of Police Officers v. Labor Relations Commn., 11 Mass. App. Ct. at 270 n.2.
5. The interesting question which has been argued is whether the commission can grant tenure to the six teachers who were not reappointed for a fourth year. The question has been skirted on prior occasions. See Massachusetts Bd.
General Laws c. 150E, § 10(c), provides: “It shall be a prohibited practice for a public employer or its designated representative to . . . (3) [discriminate in regard to hiring, tenure, or any term or condition of employment to . . . discourage membership in any employee organization . . .” (emphasis supplied). The fourth paragraph of § 11 of the same chapter reads in relevant part: “If, upon all the testimony, the commission determines that a prohibited practice has been committed, it shall . . . issue and cause to be served on the party committing the prohibited practice an order requiring it or him to cease and desist from such prohibited practice, and shall take . . . affirmative action .... It shall order the reinstatement with or without back pay of an employee discharged or discriminated against . . . .” The concluding clause of § 8 of that chapter provides that a collective bargaining agreement between a teachers’ union and a public employer may contain a provision to the effect that questions involving the dismissal of teachers tenured under G. L. c. 71, § 41, are (if the individual teachers so elect) to be determined by a grievance procedure which includes arbitration rather than in accordance with the procedures provided in G. L. c. 71, §§ 42 and 43A. See Sullivan v. Belmont, 7 Mass. App. Ct. 214, 217-219, further appellate review denied, 377 Mass. 921 (1979).
We regard the summarized provision of § 8 as persuasive evidence that the Legislature had the problems of teachers’ tenure in mind when it provided in § 11 that the commission is to order “reinstatement” of a teacher who has been subjected to a prohibited practice. It has been held that the provisions of § 11 are remedial in nature. Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 850. In School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. at 270, we placed a broad construction on the word “reinstatement” as
The judgment is reversed, and the case is to be remanded to the commission for further proceedings consistent with this opinion; the Superior Court may retain jurisdiction over the case; costs of appeal are not to be awarded to either party.
So ordered.
Robert Bourke, Richard Clark, George Lorkiewicz, Joseph McKeon, Norman Mercier, Norman Proulx, Maryann Yurek and Stephen Yurek.
A ninth complaint was filed by the president of the union with respect to a letter of reprimand which had been placed in his file, but that complaint appears now to have been lost in the shuffle.
There was no strike. The picketing was aimed at getting the committee back to the bargaining table.
A significant portion of the delay in concluding the hearings was attributable to the district, which unsuccessfully sought relief in the Superior Court from an interlocutory ruling of the commission which is no longer in issue.
We note on our own that there was no compliance with the requirements of the present fifth through ninth sentences of the third paragraph of § 11, which appear to have been designed in part to prevent too easy acceptance by the commission of the truth of the allegations of any complaint. If the hearing officer is still available, those requirements are to be met on the remand ordered under part 3 of this opinion.
They were married in December of 1974.
The provisions of G. L. c. 71, §§ 38, 41, 42 and 43A, apply to the district by virtue of the first paragraph of G. L. c. 71, § 16. See Blue Hills Regional Dist. Sch. Comm. v. Flight, 10 Mass. App. Ct. 459, 464 (1980), S.C., 383 Mass. 642 (1981).
The total authorized membership of the committee was twelve, with two members from each of the six towns comprising the district. One of the members had resigned (see note 9, infra), with the result that only eleven votes could be cast.
There was evidence that Bachand had expressed to a group of picketing teachers the thought that they should display as much enthusiasm for their teaching duties as they did for picketing; that Vendetti had called some pickets “a group of assholes”; and that Ziemski regarded one of the union activists (Lorkiewicz) as an ingrate in view of an expensive favor the committee had done for him in the past. The commission found that
Nor was there any evidence from which it could have been found that any negative vote of any member of the committee was influenced by an awareness of any antiunion bias that Gorman may have harbored. The uncontradicted evidence was that Gorman never disclosed his reasons for not recommending any individual and that he did not even take personnel folders to committee meetings. Similarly, there was no evidence from which it could have been found that any member of the committee had ever given Gorman any instruction, or even any suggestion, as to the criteria on which he should base his recommendations.
The union made no effort to call any committee member for the purpose of cross-examining him as to his motives. Its cross-examination of the only members who did testify (Bachand and Lenky) was directed to other matters.
Gorman testified that he had belatedly recommended Stephen’s termination because of overstaffing in his department. We think the commission, in assessing Gorman’s over-all attitude towards the union, has failed to come to grips with the undisputed facts that Gorman found Stephen a better paying job in another vocational school within driving distance, that Stephen had accepted that job and surrendered his contract for the school year 1975-1976 prior to the committee’s vote of July 7, that Gorman offered Stephen a position which unexpectedly became vacant in the following September, and that Stephen rejected the offer.
Maryann’s complaint was filed shortly after the vote of April 7,1975. Because of the vote of July 7, the commission awarded her her (assumed)
Stephen now has a better paying job and has rejected an offer which would have permitted him to return to the school. It does not appear that Maryann lost any pay, and she now has tenure. Accordingly, we see no reason for the commission to grant a rehearing or to reopen the present proceedings in order to allow either of them to introduce further evidence on the question of liability.
Bourke, Clark, Lorkiewicz, McKeon, Mercier and Proulx.
“No election, contract, or promotion of a teacher shall be made by a school committee unless such person shall have been nominated for such election, contract, or promotion by the superintendent of schools.”
See and contrast Labor Relations Commn. v. Blue Hill Spring Water Co., 11 Mass. App. Ct. 50, 62-63 (1980); Burlington v. Labor Relations Commn., ante, 184, 187-188.
There was no evidence of any contractual obligation to give advance notice. As the school was only in its third year, there could have been no relevant prior practice.
As counsel for the commission conceded at the argument, not once in the course of proceedings which generated more than 700 pages of testimony did the commission resolve a question of credibility in favor of the committee or Gorman. The commission must have in mind that it cannot submerge under the guise of disbelief any legitimate, nondiscriminatory reasons which Gorman may have had for his recommendations which are supported by evidence. See the Wheelock College case, 371 Mass. at 136.
We have reached this conclusion without reliance on the recent decision in Blue Hills Regional Dist. Sch. Comm. v. Flight, 383 Mass. 642 (1981).