School Committee of Danvers v. Tyman

• Decision Date: 08 March 1977
• Citation: 360 N.E.2d 877,372 Mass. 106
• Parties: , 94 L.R.R.M. (BNA) 3182, 81 Lab.Cas. P 55,046 SCHOOL COMMITTEE OF DANVERS v. Anne TYMAN et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 877

360 N.E.2d 877

372 Mass. 106, 94 L.R.R.M. (BNA) 3182,

81 Lab.Cas. P 55,046

SCHOOL COMMITTEE OF DANVERS v. Anne TYMAN et al. ¹

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 8, 1976.

Decided March 8, 1977.

Brian A. Riley, Boston (Charles M. Healey, III, Springfield, with him), for defendants.

Paul L. Kenny, Town Counsel, Danvers, for plaintiff.

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

WILKINS, Justice.

The defendants appeal from an order, under G.L. c. 150C, § 2(b), granting a stay of arbitration concerning certain grievances asserted on behalf of the defendant Tyman a nontenured teacher in the Danvers school system. An appeal from such an order is authorized by G.L. c. 150C, § 16(2). See School Comm. of Agawam v. Agawam Educ. Ass'n, --- Mass. ---, --- ^a, 359 N.E.2d 956 (1977). We conclude that arbitration should not have been stayed and that an order should be entered under G.L. c. 150C, § 2(b), directing the parties to proceed to arbitration.

The basic circumstances are not in dispute. The Danvers Teachers' Association (association) and the Danvers school committee (school committee) entered into a collective bargaining agreement for the period from September 1, 1973, to June 30, 1975. The agreement provided that a grievance, as defined therein, ² could be processed through four levels, the last of which called for final and binding arbitration. The agreement also set forth certain procedures to be followed in the evaluation of the work performance of a teacher. Those procedures included notice to a teacher of any material placed in his or her file which was derogatory to the teacher's conduct, service, character or personality; an opportunity to review that material; and a right to reply in writing. Each teacher was entitled to be advised promptly in detail of any complaints about him or her made to the school administration or to the school committee. The agreement contained a provision that '(t)he Committee retains its statutory right to rehire or not to rehire non-tenure teachers. . . .'

The defendant Tyman was hired as a teacher of English for the school year commencing September, 1971. In the early part of April, 1974, during the third year of her employment and, hence, during the last possible year of nontenured status (G.L. c. 71, § 41), the school committee voted not to rehire Tyman and on April 12, 1974, notified her in writing of its decision. A grievance was filed in May which alleged a failure to follow appropriate evaluation procedures, inadequate classroom observations and evaluations and discrimination. The defendants did not seek explicitly to arbitrate the school committee's decision not to reappoint Tyman to a fourth year as a teacher in the school system. Arbitration was requested by the association in July, and, after a continuance, a hearing was scheduled for September 10, 1974.

On September 9, 1974, the school committee filed a complaint in the Superior Court seeking, in effect, an order granting a stay of the arbitration proceeding. It is clear from the complaint that the school committee's argument was that arbitration of the grievance was barred because, under G.L. c. 71, § 41, the school committee had an absolute power to pass on the question whether a nontenured teacher's contract should be renewed. On that same day, the matter was argued by counsel and, on the basis of the complaint and the arguments of counsel, the judge entered an order granting a stay of arbitration because 'the claim sought to be arbitrated does not state a controversy covered by the provision for arbitration.' The defendants have appealed. On our own motion, we transferred the case here for decision. ³

The fundamental issue in this case arises from the tension between (1) the terms of the lawfully authorized collective bargaining agreement between the association and the school committee providing for final and binding arbitration (see G.L. c. 150E, § 8), and (2) the traditional authority of school committees in the matter of contract renewal resulting in tenure for teachers. The Legislature could have, but has not, resolved this dispute by stating explicitly, as it has in other instances (see G.L. c. 150E, § 7), whether and how far the agreement may override existing law. Our function in this case is to assess the Legislature's overall intention in light of (1) its apparent grant of full authority to school committees to agree to arbitration of 'any dispute concerning the interpretation or application of . . . (a collective bargaining) agreement' (G.L. c. 150E, § 8, inserted by St.1973, c. 1078, § 2), and (2) the continuing, apparently unfettered, statutory authority of a school committee to determine that a non-tenured teacher 'is not to be employed for the following school year.' G.L. c. 71, § 41, as amended through St.1973, c. 847, § 6.

Views of various State courts have not been consistent concerning the extent to which, if at all, a school committee may assert an absolute authority to grant or deny tenure to probationary teachers in opposition to a claim of arbitrability of questions relating to nonrenewal of the teacher's contract. See Note, Public Sector Grievance Procedures, Due Process, and the Duty of Fair Representation, 89 Harv.L.Rev. 752, 757 n. 28 (1976). Because traditions and statutory provisions vary among States, the divergence of opinion is understandable.

In some States, the courts have held that a probationary employee may be discharged as a matter of discretion and that resort to contractual grievance procedures is impermissible. See, e.g., Van Gorder v. Matanuska-Susitna Borough School Dist., 513 P.2d 1094, 1096 (Alas.1973). In Illinois, a school board's duties in appointing teachers have been held to be nondelegable, and the failure to follow contractual evaluation procedures does not restrict a school board's statutory rights and powers to decide in its discretion not to renew a probationary teacher's contract. Illinois Educ. Ass'n Local Community High School Dist. 218 v. Board of Educ. of School Dist. 218, Cook County, 62 Ill.2d 127, 130--131, 340 N.E.2d 7 (1975). Wesclin Educ. Ass'n v. Board of Educ. of Wesclin Community Unit School Dist., 30 Ill.App.3d 67, 77, 331 N.E.2d 335 (1975). Thus, in Illinois an arbitrator may not award an employment contract as a remedy for the violation of evaluation procedures contained in a collective bargaining agreement. Trustees of Junior College Dist. No. 508, County of Cook v. Cook County College Teachers Union, Local 1600, 62 Ill.2d 470, 476, 343 N.E.2d 473 (1976).

In Michigan, on the other hand, the question whether a school board agreed to arbitrate the nonrenewal of a probationary teacher's contract has been left to determination by an arbitrator. Kaleva-Norman-Dickson School Dist. No. 6 v. Kaleva-Norman-Dickson School Teachers' Ass'n, 393 Mich. 583, 595, 227 N.W.2d 500 (1975). In that opinion, no particular consideration was given to any argument that the school board had no authority to delegate to an arbitrator the question of the propriety of its failure to renew a nontenured teacher's contract.

In New York, where the tenure statute is somewhat similar to ours, the Court of Appeals recently has taken an intermediate view of the status of the terms of a collective bargaining agreement in relation to the powers of a school board to determine whether a nontenured teacher's contract will be renewed. In Board of Educ., Bellmore-Merrick Cent. High School Dist., Nassau County v. Bellmore-Merrick United Secondary Teachers, Inc., 39 N.Y.2d 167, 383 N.Y.S.2d 242, 347 N.E.2d 603 (1976), the court had to decide whether an arbitrator properly could order the temporary reinstatement of a probationary teacher as a remedy for breach of certain procedural guaranties contained in a collective bargaining agreement. The teacher sought arbitration of a grievance because, contrary to the terms of the collective bargaining agreement, she was not apprised of certain parental complaints and was not afforded the opportunity to refute them. The school board there, as in this case, responded in effect that it had the absolute power to terminate the services of the teacher. The arbitrator concluded that the agreement had been violated and ruled that an appropriate remedy was reinstatement, without tenure, for a reasonable period sufficient to enable the school board to ree valuate the teacher in accordance with the prescribed procedures. The Court of Appeals upheld the arbitrator's award. That court recognized that the arbitrator could not grant tenure to the teacher because that was a power under the sole control of the board. ⁴ However, it viewed evaluation procedures guaranteed in a collective bargaining agreement as independent of the school board's ultimate authority to pass on nonrenewal. Those procedures could be followed without infringing on the school board's prerogative. See Cohoes City School Dist. v. Cohoes Teachers Ass'n, 40 N.Y.2d 774, 778, 390 N.Y.S.2d 53, 358 N.E.2d 878 (1976); Legislative Conference of the City Univ. of N.Y. v. Board of Higher Educ. of the City of N.Y., 31 N.Y.2d 926, 928, 340 N.Y.S.2d 924, 293 N.E.2d 92, aff'g 38 A.D.2d 478, 482, 330 N.E.2d 688 (1972).

Arbitration should not have been stayed in this case. Judicial intervention is not warranted where no conflict has arisen between the consequences of the arbitration proceedings called for in the collective bargaining agreement and any nondelegable authority of the school committee.

We accept the school committee's argument that, against its will, it may not delegate to an arbitrator its authority to make decisions concerning tenure. The nondelegable authority of an incumbent school committee in the appointment and reappointment of academic personnel has a long tradition. See G.L. c. 71, §§ 37, 38; School Comm. of Braintree v. Raymond, --- Mass. ---, --- - ---, ^b 343 N.E.2d 145 (1976); DeCanio v....