Spencer-East Brookfield Regional School Dist. v. Spencer-East Brookfield Teachers' Assoc.

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17-P-103 Appeals Court
SPENCER-EAST BROOKFIELD REGIONAL SCHOOL DISTRICT vs. SPENCER-
EAST BROOKFIELD TEACHERS' ASSOCIATION.
No. 17-P-103.
Worcester. January 16, 2018. - June 4, 2018.
Present: Trainor, Massing, & Singh, JJ.
School and School Committee, Arbitration, Collective bargaining,
Termination of employment. Arbitration, School committee,
Collective bargaining. Public Employment, Collective
bargaining, Termination. Education Reform Act. Practice,
Civil, Stay of proceedings, Moot case.
Civil action commenced in the Superior Court Department on
May 13, 2016.
An application for a stay of arbitration was heard by Brian
A. Davis, J., and entry of judgment was ordered by David
Ricciardone, J.
Laurie R. Houle for the defendant.
James P. Hoban for the plaintiff.
TRAINOR, J. The Spencer-East Brookfield Teachers'
Association (association) appeals from a judgment of the
Superior Court permanently staying the grievance arbitration
2
proceeding commenced by the association before the Department of
Labor Relations (DLR). The association argues that the
arbitration became moot once the teacher involved
withdrew his grievance, and, thus, the matter should have been
dismissed. At the same time, the association argues that the
teacher had an absolute right to arbitrate an alleged collective
bargaining agreement (CBA) violation that preceded his
termination. The association maintains that it is irrelevant
that the teacher did not have professional teacher status, that
he had been employed for less than ninety days, and that
reinstatement was the remedy being sought. We affirm.1
Background. The Spencer-East Brookfield Regional School
District (district) and the association entered into a CBA that
covered the period July 1, 2015, through June 30, 2018. Edward
Suglia was hired by the district in December, 2015. His
employment was terminated on January 15, 2016, after
approximately forty-four days of employment with the district.
On January 19, 2016, the association filed a grievance on behalf
of Suglia which asserted that his "rights under the Collective
Bargaining Agreement were violated by the school committee . . .
when he was terminated . . . without the supports and process
1 Our review of this matter is de novo. See Wheatley v.
Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600
(2010).
3
that are contractually guaranteed." The school committee,
pursuant to Level Four of Article XX of the CBA, determined that
it had no jurisdiction over the grievance because it was a
personnel matter, and notified the association that it could
proceed to Level Five of the grievance procedure.2
In April, 2016, the association filed a petition to
arbitrate Suglia's termination with the DLR. The petition
asserted that the termination violated the terms of the CBA
because the district had failed in its obligations pursuant to
Article XVI and Article VIII of the CBA.3 The association
specifically asserted that Suglia's termination violated the
provisions of the "Educator Evaluation Process" instrument,
which provides a procedure for evaluating teacher progress and
is incorporated by reference into the parties' CBA.4 As
2 "Article XX -- Grievance Procedure" of the CBA outlines
the five levels of the grievance process. Level Five allows the
association to seek arbitration if the matter has not been
resolved to its satisfaction at Level Four.
3 "Article XVI -- Teacher/Nurse Evaluation" outlines an
evaluation process for all teachers and nurses. Professional
status and nonprofessional status employees are provided
different procedures and rights under the article; "Article VIII
-- Policy for Cooperating Teachers and Mentors" outlines the
relationship between cooperating teachers and student teachers
and the requirement that a newly hired teacher be assigned a
certified mentor teacher.
4 The district denied any violation of the evaluation
process.
4
remedies, the petition sought "[r]einstatement; make grievant
whole; and any and all additional appropriate remedy."
Pursuant to G. L. c. 150C, § 2(b), the district sought a
permanent stay of the grievance arbitration proceedings that had
been commenced in the DLR, on the ground that the association's
demand was not arbitrable. The Superior Court issued an order,
dated September 7, 2016, allowing the district's application to
stay the grievance arbitration, and finding that, in the
circumstances of this case, the association had no right to
grievance arbitration under the CBA and that its remedy existed
exclusively in statute. Shortly thereafter, because the matter
was pending in the Superior Court, the association sought and
obtained a temporary administrative closure of the grievance
arbitration proceedings.
The district then notified the DLR of the court's order
staying the arbitration proceedings and requested the dismissal
of the arbitration proceeding. The association filed an
opposition to the requested dismissal. On October 28, 2016,
however, the association withdrew its petition for grievance
arbitration before the DLR and notified the Superior Court that
the "Plaintiff's petition to stay arbitration is now moot and
there is no need for further proceedings beyond the decision
already issued by this Court." The district responded by
seeking entry of judgment permanently staying the grievance
5
arbitration sought by the association. A judge of the Superior
Court allowed the motion, determining that the issue in dispute
had been decided on the merits and had been fully adjudicated.
He further found that the issue raised as to whether the CBA
"may provide for arbitration of teachers' rights that transcend
the ones particular to [the] terminated member . . . merits
resolution despite the . . . withdrawal of [the] arbitration
petition," and that the matter was not moot. The association
appeals from that determination.
Discussion. The association argues that the Superior Court
should have dismissed, as being moot, the district's motion for
entry of judgment because the association had withdrawn the
petition for grievance arbitration, with prejudice. As we have
noted, the judge considered and rejected this argument when
allowing the district's motion. See Wolf v. Commissioner of
Pub. Welfare, 367 Mass. 293, 298-299 (1975) (in case "of
asserted importance, capable of repetition, yet evading review
. . . a court should take particular care that judicial review
not be foreclosed on the basis of technical mootness" [citations
and quotations omitted]). Here, the association had argued that
"the issue presented may deal with important rights of all
teachers covered by its collective bargaining agreement, an
agreement that the [association] argued at hearing may be
'nullified' by the court action here." We, however, agree with
6
the judge that the matter is not moot, and will therefore
consider the court's legal holding.
The association argues that it has the right to arbitrate a
purported violation of the CBA that preceded the district's
termination of Suglia's employment.5 Teacher dismissals are
governed by the statutory scheme contained in G. L. c. 71, § 42.6
5 Significantly, Suglia was terminated from his position on
January 15, 2016, but the association filed the grievance on
January 19, 2016, claiming that he had been "terminated . . .
without the supports and process that are contractually
guaranteed."
6 General Laws. c. 71, § 42, as appearing in St. 1993,
c. 71, § 44, reads in pertinent part:
"A teacher who has been teaching in a school system
for at least ninety calendar days shall not be dismissed
unless he has been furnished with written notice of intent
to dismiss and with an explanation of the grounds for the
dismissal in sufficient detail to permit the teacher to
respond and documents relating to the grounds for
dismissal, and, if he so requests, has been given a
reasonable opportunity within ten school days after
receiving such written notice to review the decision with
the principal or superintendent, as the case may be, and to
present information pertaining to the basis for the
decision and to the teacher's status. The teacher
receiving such notice may be represented by an attorney or
other representative at such a meeting with the principal
or superintendent. Teachers without professional teacher
status shall otherwise be deemed employees at will.
"A teacher with professional teacher status, pursuant
to section forty-one [of this chapter], shall not be
dismissed except for inefficiency, incompetency,
incapacity, conduct unbecoming a teacher, insubordination
or failure on the part of the teacher to satisfy teacher
performance standards developed pursuant to section thirty-
eight of this chapter or other just cause."
7
See Groton-Dunstable Regional Sch. Comm. v. Groton-Dunstable
Educators Assn., 87 Mass. App. Ct. 621 (2015). Section 42
provides three different levels of procedural and substantive
due process requirements and protections for public school
teachers being terminated from their employment.
Teachers with "professional teacher status," which they are
entitled to after three school years of consecutive service, are
afforded the greatest degree of due process rights and
protections.7 G. L. c. 71, § 41, as appearing in St. 1993,
c. 71, § 43. See Downing v. Lowell, 50 Mass. App. Ct. 779, 783-
784 (2001); Groton-Dunstable Regional Sch. Comm. v. Groton-
Dunstable Educators Assn., supra. The statute provides that
teachers with professional teacher status may not be terminated
from employment except for "inefficiency, incompetency,
incapacity, conduct unbecoming a teacher, insubordination or
failure on the part of the teacher to satisfy teacher
performance standards developed pursuant to section thirty-
eight" of chapter 71. G. L. c. 71, § 42, as appearing in St.
1993, c. 71, § 44. Such a teacher also has the statutory right
to receive written notice of the intent to terminate employment
7 Professional teacher status may also be conferred "upon
the recommendation of the principal, . . . to any teacher who
has served in the principal's school for not less than one year
or to a teacher who has obtained such status in any other public
school district in the commonwealth." G. L. c. 71, § 41, as
amended through St. 1996, c. 450, § 127.
8
with an explanation and documentation of the reasons sufficient
to allow the teacher to respond. Finally, such a teacher also
has the statutory right to seek review of his or her termination
at an arbitral hearing at which he or she may present evidence
and call witnesses. The school district carries the burden of
proof at any such hearing. Ibid.
A lesser degree of due process protection is afforded to
public school teachers who have not attained professional
teacher status but who have been teaching in a school system for
at least ninety calendar days but less than three consecutive
school years. Such a teacher shall not be dismissed unless he
or she has been "furnished with written notice of intent to
dismiss and with an explanation of the grounds for the dismissal
in sufficient detail to permit the teacher to respond and
documents relating to the grounds for dismissal." Ibid. Such a
teacher shall also have the right, if requested, to review the
decision to terminate employment with the principal or
superintendent and to "present information pertaining to the
basis of the decision and to the teacher's status." Ibid. The
teacher may be represented by an attorney or other
representative at such a meeting. The statute does not provide
the right, however, for such a teacher to review the decision to
terminate employment by filing a petition to arbitrate. Ibid.
9
Lastly, a public school teacher who has not attained
professional teacher status and who has held his or her teaching
position for less than ninety calendar days has no statutory
protections provided by G. L. c. 71, § 42. "Teachers without
professional teacher status [(i.e., those teachers who have
worked less than ninety calendar days)] shall otherwise be
deemed employees at will." Ibid. "Employment at will is
terminable by either the employee or the employer without
notice, for almost any reason or for no reason at all."8 Jackson
v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9
(1988). See Merola v. Exergen Corp., 423 Mass. 461, 464 (1996)
(with certain narrow exceptions derived from public policy,
"[p]rinciples of employment law permit the termination of
employees at will, with or without cause").
General Laws c. 71, § 42, provides that, "[w]ith the
exception of other remedies provided by statute, the remedies
provided hereunder shall be the exclusive remedies available to
teachers for wrongful termination."
8 "Of course, there are certain restrictions on an
employer's ability to discharge an employee at will[, none of
which are present or applicable here]. See, e.g., DeRose v.
Putnam [Mgmt.] Co., 398 Mass. 205, 208-210 (1986) (liability for
discharge in violation of public policy); Fortune v. National
Cash Register Co., 373 Mass. 96, 104-105 (1977) (obligation of
good faith and fair dealing); G. L. c. 151B, § 4 (1986 ed.)
(prohibition against discrimination in employment)." Jackson v.
Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988).
10
We have previously addressed the question of how the
statutory scheme contained in G. L. c. 71, §§ 41 et seq.,
applies when there are potentially contradictory provisions
contained in the statute and a CBA that is binding on all the
parties. In particular, we concluded that G. L. c. 71, § 42,
provides the exclusive remedy for a public school teacher who
claims to be aggrieved by his or her termination of employment
irrespective of the provisions of any applicable CBA. Since the
enactment of St. 1993, c. 71, the Education Reform Act of 1993,
we have "consistently held that the source, authority, and scope
of arbitration for terminated teachers derive from [G. L.
c. 71,] § 42, not from contract -- regardless of the existence
of terms of a collective bargaining agreement." Groton-
Dunstable Regional Sch. Comm. v. Groton-Dunstable Educators
Assn., 87 Mass. App. Ct. at 623.
The association argues that nothing in the controlling
statutes prohibits the "arbitration of violations of negotiated
evaluation procedures and other contract rights when a district
non-renews or dismisses a teacher." The association relies on
School Comm. of Hull v. Hull Teachers Assn., MTA/NEA, 69 Mass.
App. Ct. 860 (2007), and School Comm. of Pittsfield v. United
Educators of Pittsfield, 438 Mass. 753 (2003), for support of
11
its argument. However, given the facts and legal issues that we
consider here, both cases are inapposite.9
While the Education Reform Act of 1993 exempted then-
existing CBAs the provisions of which were contrary to § 42, it
also mandated that "[c]ollective bargaining agreements effective
after the date of this act shall be subject to the provisions of
said section[] [42]." Groton-Dunstable Regional Sch. Comm. v.
Groton-Dunstable Educators Assn., 87 Mass. App. Ct. at 623,
quoting from St. 1993, c. 71, § 77. The CBA and the evaluation
instrument that the association relies upon as the basis for its
arbitration demand were executed well after the Education Reform
Act was enacted in 1993.
9 In School Comm. of Hull, supra, a teacher grieved the
school committee's decision not to renew her employment,
claiming that the committee had violated the CBA by failing to
follow the evaluation procedures set forth in the CBA. The
teacher had not attained professional teacher status, but she
had worked for more than ninety days, and thus was entitled to
the statutory due process rights conferred by G. L. c. 71, § 42,
second par. An arbitrator ordered her reinstated, and this
court affirmed, concluding that the CBA provisions were
consistent with the statutory due process rights conferred by
§ 42 as a prerequisite to nonrenewal of employment. Here, in
contrast, Suglia had worked for the district for less than
ninety days, and thus was afforded no due process rights under
§ 42. School Comm. of Pittsfield, supra, unlike the case at
bar, did not concern a teacher's dismissal, but, rather, her
involuntary transfer to another school district. The court
determined that the issue was governed exclusively by the CBA
and not by statute. Arbitration was therefore the appropriate
remedy.
12
Moreover, the teacher here was an employee at will, had no
statutory due process rights controlling his termination from
employment, and had been terminated from employment before the
association filed the grievance alleging violation of the CBA's
evaluation requirements. At the time that the association filed
the grievance on behalf of the teacher, Suglia was no longer
employed by the district. He had been terminated pursuant to
the provisions of § 42 and was no longer entitled to the
benefits of the CBA.10 The exclusivity provision of § 42 applies
here, and the association had no right to pursue arbitration on
behalf of a terminated teacher who had worked for the district
for less than ninety days. Suglia was no longer an employee of
the district and the association's remedy existed exclusively in
§ 42. Accordingly, the Superior Court's judgment dated December
12, 2016, based on the court's order dated September 7, 2016,
permanently staying the grievance arbitration proceeding
commenced by the association before the DLR (Case No. ARB-16-
5201), is affirmed.
So ordered.
10As we have noted, Suglia was terminated from his position
on January 15, 2016, and the association filed the grievance on
January 19, 2016. The CBA applies to active members of the
association or those members who have the right to grieve their
termination. Suglia does not fit into either category. See
School Comm. of Hull, supra; Groton-Dunstable Regional Sch.
Comm., supra.