Blue Hills Regional Dist. School Committee v. Flight

• Decision Date: 30 September 1980
• Citation: 10 Mass.App.Ct. 459,409 N.E.2d 226
• Parties: BLUE HILLS REGIONAL DISTRICT SCHOOL COMMITTEE v. Myrtle R. FLIGHT et al. 1
• Court: Appeals Court of Massachusetts

Page 226

409 N.E.2d 226

10 Mass.App.Ct. 459

BLUE HILLS REGIONAL DISTRICT SCHOOL COMMITTEE v. Myrtle R. FLIGHT et al. ¹

Appeals Court of Massachusetts, Norfolk.

Argued May 15, 1980.

Decided Aug. 29, 1980.

Further Appellate Review Granted Sept. 30, 1980.

Thomas J. Butters, Boston (William J. Carr, Boston, with him), for plaintiff.

Alan J. McDonald, Boston (Gabriel O. Dumont, Jr., Boston, with him), for defendants.

Before BROWN, GREANEY and PERRETTA, JJ.

GREANEY, Justice.

This appeal raises questions concerning the scope of an award that an arbitrator may fashion when, in arbitration proceedings pursuant to G.L. c. 150E, § 8, he determines that a school committee has violated the terms of its collective bargaining contract with a public school education association by failing to promote a particular teacher to an administrative position because of her sex.

The relevant facts, taken from the record and the arbitrator's decision, are these. The grievant is Myrtle R. Flight, a tenured teacher at the Blue Hills Regional Vocational-Technical School, who had served as department head of the health services and culinary arts divisions at the school. In the spring of 1977, she and thirty-seven others applied for the posted position of assistant director, vocational subjects. ² The school's superintendent-director, (superintendent), who had previously worked closely with Flight, interviewed several of the candidates, but did not interview Flight. The superintendent ultimately recommended a male from outside the Blue Hills Regional staff for the job, whom the school committee subsequently appointed.

At the time of the appointment, the association and the committee were parties to a collective bargaining agreement which, by its terms, was effective for the period between September 1, 1976, and August 31, 1978. Flight grieved her failure to receive the promotion on the basis that subsections 13.3 and 13.5 of Art. XIII of the agreement had been violated. Subsection 13.3 provided that in dealing with promotions the school committee would give "due weight" to the professional background and attainments of each applicant, including length of service in the school system, and that "(w)hen, in the opinion of the Committee, all other factors are substantially equal, preference will be given to qualified teachers already employed by the Committee . . . ." Subsection 13.5 of the agreement provided that "(a)ppointments will be made without regard to race, creed, color, religion, nationality, sex or marital status." Flight's grievance was not redressed at the first level of the grievance procedure provided by the agreement, and the superintendent denied relief at the second level, "apparently without explanation." At the third level, before the school committee, the superintendent presented a written comparison of the qualifications of Flight and the successful male applicant. This evaluation indicated that Flight held undergraduate degrees in medical-secretarial science and health services management, whereas the successful applicant possessed undergraduate degrees in engineering and industrial technology. It also showed that both candidates held master's degrees in administration of occupational education, that both had satisfied state certification requirements for the position, and that both possessed extensive teaching experience and backgrounds in the administration of vocational curricula. The superintendent's evaluation expressed his opinion that the male applicant's "background and experience are of far greater value to a bona fide vocational curriculum . . . than that of Mrs. Flight whose background consists mainly of the health-secretarial field." In denying the grievance, the committee stated that the appointee's "qualifications far outweighed those of any other candidates for (the) position."

Following the committee's action, Flight's grievance was submitted to arbitration in accordance with the agreement; the issues before the arbitrator were framed as they are set forth in the margin. ³ After concluding that the grievance was arbitrable, the arbitrator reviewed the qualifications of Flight and the appointee and received testimony from the superintendent. He determined that Flight's qualifications were, at the least, substantially equal to the appointee's, that they both satisfied the posted requirements for the position, and that the superintendent's not appointing Flight proceeded from unfounded sex-stereotyped assumptions, which the committee implicitly adopted by accepting the superintendent's recommendation. Those assumptions related to the perceived capability of the two candidates to deal with safety hazards in shop classes, with budget matters, and with trade and union representatives. The arbitrator also found that the superintendent had underrated Flight's experience in the vocational area by wrongly assuming that she had worked with programs which were in "typically female areas."

Upon an analysis of the whole case, the arbitrator concluded that Flight had been the victim of sex discrimination. As the primary award, he ordered that she be promoted to the position she sought, retroactively effective as of July 1, 1977, and that she be paid the salary differential between the jobs, with nine percent interest from July 1, 1977, to the date of her appointment. As an alternative award, in the event that a court should determine that he lacked the power to order the promotion, the arbitrator ordered the school committee and the superintendent to conduct a de novo review of the grievant's and appointee's qualifications, and, if Flight's qualifications were found to be substantially equal to the appointee's, to retroactively promote her to the position and to pay the salary differential with interest.

Pursuant to opposing motions to vacate and to confirm the arbitral award, ⁴ a judge of the Superior Court entered a final judgment, ⁵ ordering the committee to appoint Flight to the position retroactively effective as of July 1, 1977, and to pay her the salary differential from that date until the date of her appointment, with interest from September 18, 1978, at the rate of eight percent. The committee has appealed from the modified judgment which confirmed the award, and the association and grievant have cross appealed from the portion of the judgment that altered the arbitrator's award of interest.

1. The school committee's brief does not directly challenge the arbitrability of the grievance. ⁶ Rather, the committee contends that enforcement of the award would intrude into an area that is reserved to its judgment. The grievant and the association assert that the non-delegability doctrine does not limit the arbitrator's authority to enforce in the public sector a specific contractual antidiscrimination provision by ordering the grievant's appointment. ⁷

The non-delegation doctrine is rooted in the statutory authority conferred by the Legislature on local school committees to manage the public schools. G.L. c. 71, §§ 37 and 38. General Laws c. 71, § 16, extends the same prerogatives to the school committees for regional school districts. "By long-established legislative policy school committees are given general management of the public schools, including the election and dismissal of teachers. . . . The success of a school system depends largely on the character and ability of the teachers. Unless a school committee has authority to employ and discharge teachers it would be difficult to perform properly its duty of managing a school system." Davis v. School Comm. of Somerville, 307 Mass. 354, 362, 30 N.E.2d 401, 406 (1940). In the area of personnel, this authority has been interpreted to include the non-delegable and plenary power to make specific appointments of principals (Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. 522, 526-528, 377 N.E.2d 940 (1978)), to determine tenure for teachers (School Comm. of Danvers v. Tyman, 372 Mass. 106, 111-113, 360 N.E.2d 877 (1977)), to change the duties or rank of a teacher entrusted with special managerial authority (Downey v. School Comm. of Lowell, 305 Mass. 329, 331, 25 N.E.2d 738 (1940)), and to abolish supervisory positions no longer necessary to the efficient conduct of the schools (School Comm. of Hanover v. Curry, 369 Mass. 683, 684-685, 343 N.E.2d 144 (1976); School Comm. of Braintree v. Raymond, 369 Mass. 686, 690, 343 N.E.2d 145 (1976)). In exercising their power of appointment, school committees have an affirmative duty "in the interest of the public to select the person . . . whom they (have) judged best fitted for (the position)." Jantzen v. School Comm. of Chelmsford, 332 Mass. 175, 177-178, 124 N.E.2d 534, 536 (1955). These decisions and others (see cases collected in School Comm. of W. Springfield v. Korbut, 373 Mass. 788, 795, 369 N.E.2d 1148 (1977)), support the conclusion that the final appointment and reappointment of permanent academic personnel lies within the school committee's "zone of management prerogative over educational policy" which cannot be delegated to an arbitrator or be made the subject of an arbitration award which compels a school committee to surrender its discretion to a third party. School Comm. of Boston v. Boston Teachers, Local 66, 378 Mass. ---, --- ^a, 389 N.E.2d 970, 974 (1979). See School Comm. of Danvers v. Tyman, 372 Mass. 106, 113 n.5, 360 N.E.2d 877 (1977).

Although a school committee cannot be compelled without its explicit consent to delegate its power to select for a management position the person it deems best qualified to serve the needs of the school system, "there is no reason why . . . (it) may not bind itself to follow certain procedures precedent to the making of any such decision." Id. at 113, 360 N.E.2d at 881. Accord, Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Assn., 372 Mass. 116, 120, 360 N.E.2d 883 (1977); School Comm. of W. Bridgewater...