DocketNumber: No. 02-P-11
Citation Numbers: 61 Mass. App. Ct. 910
Filed Date: 6/25/2004
Status: Precedential
Modified Date: 6/25/2022
A collective bargaining agreement in effect between the parties from July 1, 1997, to June 30, 2000, specified that, among the three paraprofessionals in the Westport School District (two in the middle school and one in the high school),
The defendant (union) filed a grievance on Morse’s behalf, which proceeded to arbitration, pursuant to the agreement. On December 13, 1999, the arbitrator found in the union’s favor and ordered the committee to reinstate Morse and reimburse her for lost wages and benefits. The committee then brought this action to vacate the award, alleging that the arbitrator “exceeded [his] powers or rendered an award requiring a person.to commit an act or engage in conduct prohibited by [S]tote or [F]ederal law.” G. L. c. 150C, § 11(a)(3). The committee claimed that the remedy ordered violated G. L. c. 71, § 59B, by supplanting the principal’s discretionary authority over hiring and firing decisions.
The relevant legislative history of G. L. c. 71, § 59B, is set forth in School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 759-762 (2003). Under the statute, part of the Education Reform Act, St. 1993, c. 71, § 53, principals inherited the school committee’s former managerial authority over hiring, discipline, and termination and “broad discretion to determine . . . whom to hire from among a pool of applicants,” while school committees continue to determine personnel-related policies and procedures — including the qualifications applicable to specific positions and the manner in which applicants are to be evaluated — as a matter of collective bargaining.
Accordingly, we agree with the judge’s conclusion that the bumping system, as it operated among the school district’s paraprofessional employees, was a proper subject of collective bargaining — as part of the “terms and conditions of employment” — and did not encroach upon the nondelegable discretion of the principal defined by § 59B.
Judgment affirmed.
The duties of paraprofessionals are not specified in the record. The other categories of employees covered by the agreement are custodians, cafeteria workers, clerical workers, and teaching assistants. Paraprofessionals earned an hourly wage in rough accordance with the first three groups and significantly less than teaching assistants.
General Laws c. 71, § 59B, provides, in relevant part: “Principals employed under this section shall be responsible, consistent with district personnel policies and budgetary restrictions and subject to the approval of the superintendent, for hiring all teachers . . . and other personnel assigned to the school, and for terminating all such personnel, subject to review and prior approval by the superintendent and subject to the provisions of this chapter.” Contrary to other statutes, the mandates of G. L. c. 71, § 59B, do not succumb to contrary terms contained in a collective bargaining agreement. See G. L. c. 150E, § 7(d); School Comm. of Natick v. Education Assn. of Natick, 423 Mass. 34, 39 (1996).
As the nondelegable authority (not capable of being submitted to collective bargaining nor subject to review) over employment currently possessed by principals was transplanted from that previously accorded to school committees, cases under the earlier statute remain relevant on this point. See Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers’Assn./Mass. Community College Council, 423 Mass. 23, 29 n.6, 31 n.8 (1996); School Dist. of Beverly v. Geller, 435 Mass. 223, 234 n.12 (2001) (Cordy, J., concurring).