Boston Teachers Union, Local 66, Am. Federation of Teachers (AFL-CIO) v. School Committee of Boston, AFL-CIO

• Decision Date: 11 June 1976
• Docket Number: AFL-CIO
• Citation: 370 Mass. 455,350 N.E.2d 707
• Parties: , 93 L.R.R.M. (BNA) 2205, 80 Lab.Cas. P 53,891 BOSTON TEACHERS UNION, LOCAL 66. AMERICAN FEDERATION OF TEACHERS () et al. 1 v. SCHOOL COMMITTEE OF BOSTON et al. 2 (and a companion case). 3
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 707

350 N.E.2d 707

370 Mass. 455, 93 L.R.R.M. (BNA) 2205,

80 Lab.Cas. P 53,891

BOSTON TEACHERS UNION, LOCAL 66. AMERICAN FEDERATION OF

TEACHERS (AFL-CIO) et al. ¹

v. SCHOOL COMMITTEE OF BOSTON et al. ² (and a

companion case). ³

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 1976.

Decided June 11, 1976.

Marilyn L. Sticklor, Asst. Corp. Counsel (Herbert P. Gleason, Corp. Counsel, with her), for School Committee of Boston and others.

Albert L. Goldman, Boston, for Boston Teachers Union, Local 66, American Federation of Teachers (AFL-CIO) and others.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, and WILKINS, JJ.

WILKINS, Justice.

These two cases, which were consolidated for trial, concern the rights and obligations of the Boston Teachers Union and its members, on the one hand, and the mayor and school committee, on the other hand, under collective bargaining agreements. At issue generally is the extent of the obligation of the city to hire per diem substitute teachers (substitute teachers) to replace regular teachers who are absent. Specifically, the parties disagree as to the lawfulness of an arbitrator's award which directed payment of damages to the union's scholarship fund because the school committee failed to hire substitute teachers during certain school days in December, 1972. Although there are various parties to these proceedings (as fully described in nn. 1, i, and 3), in practical terms the contest is between the union and the city, and we shall refer to the parties generally as the union and the city.

We conclude that (1) class size, teaching load, and the number of substitute teachers to be hired are proper subjects of collective bargaining; (2) the obligation to hire substitute teachers in December, 1972, was enforceable in the circumstances; (3) the city may decline to hire substitute teachers when no appropriated funds are available for the purpose, but (4) on this record, during the significant days in December, 1972, there were sufficient available funds to hire substitute teachers; and (5) the arbitrator exceeded his powers in directing the payment of damages to the union's scholarship fund. We regard this as an appropriate occasion to declare for the future the duties of the city, the school committee, and the mayor concerning the funding of obligations arising from collective bargaining agreements. Therefore, we declare that the mayor does not have the power to veto the appropriation of funds to meet collective bargaining obligations when the amount of the needed funds exceeds the amount which, pursuant to special legislation applicable to Boston, the school committee is authorized to appropriate on its own.

The Facts.

On December 6, 1972, the mayor notified the school committee by letter that he was instructing the city auditor to take certain steps, including an immediate termination of payment for substitute teachers for the balance of the calendar year. In his letter, the mayor asserted that the school committee had 'been spending at a rate which, if unchecked, will result in a.$1.4 million deficit in 1972.' On December 8, 1972, the school committee instructed the superintendent of schools to discontinue hiring substitute teachers to cover the classes of absent regularly assigned teachers, and no substitute teachers were hired during the nine school days from December 11, 1972, to the commencement of Christmas vacation.

All collective bargaining agreements entered into between the union and the school committee have contained the statement: 'It is the policy of the Committee that substitutes shall be hired to cover classes of regularly assigned teachers when they are absent.' The collective bargaining agreement in effect in December, 1972, also provided for maximum limits on class size and a maximum number of teaching periods for each Boston teacher. The discontinuance of the hiring of substitute teachers caused class sizes and teaching loads to exceed these limits.

On December 12, 1972, the union filed a grievance pursuant to the collective bargaining agreement protesting the failure of the school committee to hire substitute teachers and requested arbitration. That same day, the school committee responded to the grievance by voting that it agreed with the union that there had been 'violations of the contract in the matter of the lack of substitutes to cover classes.' The school committee also agreed to binding arbitration but claimed to have 'no control over the violations.' The grievance was submitted to arbitration on December 13, 1972.

On that same day, the union commenced one of the two cases which are now before us. The union sought preliminary and permanent injunctions, in effect, directing that substitute teachers be hired to cover classes of regularly assigned teachers when they were absent. The union also sought a declaration of the obligations of the school committee to hire substitute teachers to cover the classes of absent regularly assigned teachers. The application for preliminary injunctive relief was denied.

The total appropriation for general school purposes in 1972 was approximately $101,130,000, of which all but $10,000,000 was appropriated by the school committee pursuant to its statutory authority. On December 11, 1972, the amount of appropriated funds ostensibly remaining in the account designated 'Salaries, Professional (Temporary),' from which salaries of subsitute teachers normally would be paid, exceeded the amount which would be needed, on any reasonable estimate, to meet the cost of hiring substitute teachers during the balance of the calendar year. The record does not show on what date the school committee committed all of the funds appropriated for general school purposes. It does show that in 1972 the school committee expended for general school purposes approximately $1,300,000 more than was appropriated for those purposes.

The hearings on the union's arbitration demand were held in January and February, 1973, and the arbitrator filed an opinion and award on March 22, 1973. He ordered the school committee 'and/or' the city to pay $52,416 to the Boston Teachers Union Scholarship Fund 'as damages for the several and repeated violations of the (collective bargaining agreement) during the last nine school days of calendar 1972 in respect of the failure to hire daily substitutes.' He also directed that the school committee should not 'hereafter unilaterally discontinue the hiring of daily substitutes during the term of the existing Agreement.'

On April 13, 1973, the school committee, the mayor, the city, the city auditor, and the city treasurer commenced the second case which is now before us, a 'petition for declaratory judgment and for vacation of arbitration award.' The city alleged that the arbitrator exceeded his authority under the collective bargaining agreement in undertaking to determine the obligation of the city to provide funds for substitute teachers, in ordering the payment of funds to the union's scholarship fund, and in ordering payment of funds when no appropriation was available to pay substitute teachers from December 11, 1972, to the end of 1972. Specifically, the city sought an order that 'lack of funds justified steps taken by the City of Boston and its Mayor and Auditor with respect to the hiring of substitutes.' The union counterclaimed seeking confirmation of the award.

After the cases brought by the union and by the city were consolidated for trial, they were submitted in November, 1974, for decision on the pleadings and a stipulation of facts. The judge ruled in favor of the union, confirming the arbitrator's award. He also ordered entry of judgments declaring the rights of the parties concerning the hiring of substitute teachers in terms which were consistent with the union's contentions and the arbitrator's award. The terms of the judgments entered in these proceedings are discussed more fully below.

The city appealed from the judgments, and we granted the union's request for direct appellate review.

The Scope of Collective Bargaining

The city argues first that the failure to hire substitute teachers for economic reasons and the consequences of the failure to hire substitute teachers are not proper subjects of collective bargaining and that, therefore, the terms of the collective bargaining agreement concerning substitute teachers cannot be enforced. It claims that these subjects are exclusive areas of managerial prerogative, relying on the conclusions expressed in our recent opinions in SCHOOL COMM. OF BRAINTREE V. RAYMOND, --- MASS. ---, 343 N.E.2D 145 (1976)^A, and SCHOOL COMM. OF HANOVER V. CURRY, --- MASS. ---, 343 N.E.2D 144 (1976)^B. The city says that under G.L. c. 149, § 178I, applicable in 1972 but repealed as of July 1, 1974, by St.1973, c. 1078, §§ 1 and 7, and under G.L. c. 150E, § 6, inserted by St.1973 c. 1078, § 2, now in effect, the hiring of substitute teachers does not involve a 'condition of employment' and is not arbitrable. See Director of the Div. of Employee Relations of the Dept. of Administration & Fin. v. Labor Relations Comm'n, --- Mass. ---, --- - ---, ^c 346 N.E.2d 852 (1976), where we did not have to reach the question whether a hiring freeze, said to be the result of financial stringency, was intrinsically nonarbitrable.

Obviously, the conditions of employment of school teachers and subjects within the prerogative of a school committee are not mutually exclusive. See Dewards, The Emerging Duty to Bargain in The Public Sector, 71 Mich.L.Rev. 885, 919--920 (1973). These conflicting interests, in the context of collective bargaining, have been the subject of litigation in other jurisdictions with differing results. See Annot., 68 A.L.R.3d 885, 921--926, 928--938 (1976). These differing results may be explained, in part, by variations in the statutory provisions concerning the collective bargaining rights and duties of public employees and...