Opinion
16-P-582
04-24-2017
SCHOOL COMMITTEE OF BOSTON v. BOSTON TEACHERS UNION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Boston Teachers Union (BTU) appeals from a judgment on the pleadings that confirmed in part and vacated in part an arbitration award in BTU's favor. The arbitration arose out of a decision by the School Committee of Boston (BSC) to hire eleven tutors who, the arbitrator found, are performing the duties of BTU members in violation of the parties' collective bargaining agreement (CBA). The arbitrator ordered BSC to apply the terms of the CBA prospectively to the tutors, and also to make the tutors "whole." A Superior Court judge upheld both the arbitrator's finding that BSC violated the CBA and the prospective remedy, but he vacated the retroactive portion of the award on the ground that it violates public policy. We affirm.
Background. We summarize the facts as found by the arbitrator and by which we are bound. School Dist. of Beverly v. Geller, 435 Mass. 223, 228 (2001). The BTU-BSC CBA covers paraprofessionals ("paras"), defined as "non-certified individual[s] employed by [BSC] whose function is to assist teachers and other school personnel." Under the CBA's "Recognition" clause, BTU "[i]s the exclusive bargaining representative for all [paras] employed by" BSC, including individuals "who now or hereafter perform the duties of paras."
In 2010, the Legislature enacted St. 2010, c. 12, "An Act Relative to the Achievement Gap" (the act). The act was an "emergency law" passed to "turnaround [sic ] underperforming schools," St. 2010, c. 12 (preamble), and two of BSC's public schools were designated pursuant to the act as Level 4 "turnaround" schools whose poor performance placed them at risk of a State takeover. See G. L. c. 69, § 1J ; 603 Code Mass. Regs. § 2.02 (2012) (defining "Placing a School in Level 4"). During the 2012-2013 school year, the Commonwealth notified BSC that these two schools were likely to receive "Level 5" designations and be placed in receivership unless it selected a service provider from a list of approved vendors. Thus, BSC hired eleven math tutors from Blueprint Schools Network, Inc. (Blueprint), a nonprofit organization dedicated to "working directly with school districts to close the achievement gap in their lowest-performing schools." The tutors work pursuant to a one-year service-based fellowship funded by Federal government programs including AmeriCorps; BSC does not fund the positions. However, BSC does provide the tutors with health care coverage, and they are paid through BSC's payroll system because, as the arbitrator found, Blueprint "lack[ed] ... a payroll system." Tutors are also included in the public retirement system in the same manner as bargaining unit paras, but they receive none of the other benefits provided to paras by the CBA.
Other third-party vendors retained by BSC pay their employees directly through their own payroll systems.
On July 3, 2013, BTU filed a grievance alleging that BSC's employment of the tutors violates the CBA. Neither the grievance nor the subsequent demand for arbitration is in the record appendices; however, a mutually selected arbitrator framed the issues as follows:
"Did the [BSC] violate the paraprofessional [CBA] by its employment of tutor-fellows at the Elihu Greenwood Leadership Academy and English High School, under a memorandum of understanding with [Blueprint]? If so, what shall be the remedy?"
The arbitrator found that the tutors are performing the duties of paras and that BSC's employment of them without recognizing BTU as their representative violates the CBA's "Recognition" clause. BTU requested "a prospective order that the terms of the paras' [CBA] be applied to the tutor[s]," the arbitrator granted that request, and he also ordered BSC to make the tutors "whole for any damages sustained as a direct result of the contract violation."
BSC brought suit to vacate the arbitrator's award, and BTU counterclaimed for confirmation of the award and moved for judgment on the pleadings. A judge in the Superior Court upheld the arbitrator's finding that the tutors perform the duties of paras. He confirmed the prospective remedy, but concluded that the arbitrator exceeded his authority in awarding BTU a retroactive remedy. The judge ruled that that portion of the award conflicts with a "well-defined and dominant public policy" of requiring the two "turnaround" schools to get assistance from a third-party education provider to avoid a State takeover. In the special circumstances of this case, the judge ruled that "the back pay award frustrates" public policy and "cannot stand." Judgment entered vacating the retroactive portion of the award and otherwise confirming the award. BTU appeals. (BSC did not cross-appeal.)
Discussion. We review de novo the judge's disposition of the motion for judgment on the pleadings. Frankston v. Denniston, 74 Mass. App. Ct. 366, 371 n.6 (2009). Mindful that "[a] matter submitted to arbitration is subject to a very narrow scope of review," we must "determine if the arbitrator has exceeded the scope of his authority ... by granting relief beyond the scope of the arbitration agreement, by awarding relief beyond that to which the parties bound themselves, or by awarding relief prohibited by law." Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990) (citations omitted). Where, as here, an award implicates statutes in which "the arbitrator possesses no special expertise," School Comm. of Hanover v. Curry, 3 Mass. App. Ct. 151, 156 (1975), S.C., 369 Mass. 683 (1976), "the responsibility for interpreting the meaning of [those statutes] and the scope of the arbitrator's authority thereunder remains with the court." School Dist. of Beverly v. Geller, 435 Mass. at 230.
There are no allegations that the arbitrator "decided the matter based on fraud, arbitrary conduct, or procedural irregularity in the hearings." Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. at 1007 (quotation omitted).
Neither party argues error in the arbitrator's decision that BSC breached the CBA. "Arbitrators have broad discretion in interpreting collective bargaining agreements," Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341, 353 (1987), and accordingly here "[t]hat determination was within [the arbitrator's] powers." School Comm. of Braintree v. Raymond, 369 Mass. 686, 691 (1976). See School Comm. of W. Springfield v. Korbut, 373 Mass. 788, 792 (1977) ("[W]e are not to consider whether the arbitrator['s] interpretation of the collective bargaining agreement was correct").
There was no error in confirming the prospective remedy, as BTU requested such a remedy and arbitrators have broad discretion "in providing complete relief to an aggrieved party." Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, supra. Paras covered by the CBA are aggrieved by BSC's employment of tutors who are assigned "the duties of paras" without recognition of BTU as the tutors' exclusive bargaining representative or provision to the tutors of the benefits of the CBA. The prospective award prevents BSC from avoiding its obligations to paras covered under the CBA by employing tutors who are not. This is consistent with BSC's contractual obligations and with Federal law. See 45 C.F.R. § 2540.100(d ), (e ) (2012) (AmeriCorps grants may not be used "to impair existing contracts for services or collective bargaining agreements" or "to duplicate an activity that is already available in the locality of a program"). The prospective award promotes public policy and allows BTU to fulfil its statutory mandate to act "primarily for the collective good of all employees." Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, supra at 349. See G. L. c. 150E, § 5, inserted by St. 1973, c. 1078, § 2 (exclusive representative "shall be responsible for representing the interests of all [employees in its bargaining unit] ... without regard to employee organization membership").
The retroactive remedy, however, is problematic. General Laws c. 150C, § 11(a )(3), inserted by St. 1959, c. 546, § 1, mandates that the Superior Court vacate an arbitration award if it "exceeded [the arbitrator's] powers" or "requir[ed] a person to commit an act or engage in conduct prohibited by [S]tate or [F]ederal law." "An award that violates public policy is such an award." Massachusetts Bay Transp. Authy. v. Boston Carmen's Union, Local 589, 454 Mass. 19, 25 (2009). See School Comm. of Hanover v. Curry, 369 Mass. at 685 ("Public policy, whether derived from, and whether explicit or implicit in statute or decisional law, ... may ... restrict the freedom to arbitrate" [quotation omitted] ). For an award to be vacated on this basis, the public policy must be "well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." Massachusetts Bay Transp. Authy. v. Boston Carmen's Union, Local 589, supra at 26 (quotation omitted). The question whether an award violates public policy "is ultimately one for resolution by the courts." Ibid., quoting from Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 n.5 (1995).
Here, we agree with the Superior Court judge that the retroactive award offends a "well defined and dominant" public policy established by the Massachusetts Constitution, statutes, regulations, and case law. It is a "paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children ... the opportunity to reach their full potential." G. L. c. 69, § 1, as amended through St. 2002, c. 218, § 1A. BSC has a State constitutional duty to provide a quality public education, Hancock v. Commissioner of Educ., 443 Mass. 428, 430-431 (2005) (Marshall, C.J., concurring), and it is "answerable to the Legislature for district-wide performance." School Comm. of Newton v. Newton Sch. Custodians Assn., Local 454, SEIU, 438 Mass. 739, 747 n.15 (2003).
In pursuit of this goal, the act and implementing regulations of the Massachusetts Department of Education (Department) set out detailed procedures and requirements governing turnaround plans for underperforming schools. One such requirement is that the turnaround plan include a financial plan for the school. Specifically, G. L. c. 69, § 1J(c ), as appearing in St. 2010, c. 12, § 3, provides that the school district superintendent, "after considering the recommendations of the local stakeholder group," "shall" include in any turnaround plan "a financial plan for the school, including any additional funds to be provided by the district, commonwealth, federal government or other sources." When formulating the financial plan, the superintendent is empowered to determine how best to use available funds; for instance, by "reallocat[ing] the uses of the existing budget of the school" and, if certain conditions are met, "provid[ing] additional funds to the school from the budget of the district." G. L. c. 69, § 1J(d ). In addition, with respect to assistance from third-party providers, the Department's regulations contemplate that funding for that assistance will be provided by the Commonwealth. Indeed, "[t]he Department shall... make available to districts, to the extent funding allows, professional development opportunities and assistance from ... third party partners." 603 Code Mass. Regs. § 2.03(6)(b) (2012) (emphasis supplied). See 603 Code Mass. Regs. § 2.05(5)(a)5 (2012) (requiring turnaround plan for Level 4 school to "include descriptions of the assistance to be provided by the Department in support of the action steps in the plan, as agreed on by the Department and the superintendent, subject to the availability of resources for the Department to provide the assistance").
The act requires the superintendent to consider the recommendations of the local stakeholder group throughout the process of creating a turnaround plan for a school. See G. L. c. 69, § 1J(c ) -(g ). The local stakeholder group must include, among others, "the chair of the school committee, or a designee," "the president of the local teacher's union, or a designee," one school administrator, one teacher and one parent from the school, and various State and local officials. Id. § 1J(b ).
The retroactive award conflicts with these statutory and regulatory provisions and is contrary to the act's purpose to "turn around" struggling schools, through means that include financial support to the district. See G. L. c. 69, § 1J(a ) (act prevails over "laws regulating other public schools [that] conflict with this section or any turnaround plans created thereunder"). BSC must assist its schools in educating their students, see 603 Code Mass. Regs. § 2.03(1), and its ability to do so is directly impaired by an award that draws money from BSC's budget to back-pay tutors for whom no money was allotted. As BTU concedes, "[a]n arbitrator has no authority to award damages for breach of a provision in a collective bargaining agreement where no appropriated funds are available to implement that provision." School Comm. of Boston v. Boston Teachers Union, Local 66, 395 Mass. 232, 237 (1985). See Boston Teachers Union, Local 66 v. School Comm. of Boston, 370 Mass. 455, 464–465 (1976) (arbitrator's award of damages could be upheld "only if appropriated, uncommitted funds in the school budget established according to law were available"). Accord Somerville v. Somerville Mun. Employees Assn., 418 Mass. 21, 24 (1994). BTU bore "the burden of proving the availability of funds" to pay the retroactive award, Boston Teachers Union, Local 66 v. School Comm. of Boston, supra at 466; it offered no such proof and it does not dispute that the funding to pay the tutors came exclusively from Federal grants. Thus, in these circumstances, where BSC was mandated to hire the tutors and was provided the funds up front to do so, we agree with the judge that the retroactive award offends the "well defined and dominant" public policy established by the act, the regulations, and the overarching goal of the Commonwealth to provide a quality public education to all children. See Massachusetts Bay Transp. Authy. v. Boston Carmen's Union, Local 589, 454 Mass. at 26 ("overriding governmental policy proscribing various types of discrimination, set forth in G. L. c. 151B" constituted "well defined and dominant" public policy).
For the above reasons, the judge did not err in vacating the retroactive portion of the arbitrator's award and otherwise confirming it.
Judgment affirmed.