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07/11/77 JOHN BRADLEY & ANOTHER *FN1 v. SCHOOL

July 11, 1977

JOHN BRADLEY & ANOTHER *FN1
v.
SCHOOL COMMITTEE OF BOSTON & ANOTHER *FN2



Suffolk. Civil action commenced in the Superior Court on April 27, 1976. The case was heard by Morse, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

School and School Committee. Arbitration. Boston. Contract, Collective bargaining contract.

The opinion of the court was delivered by: Hennessey

Pursuant to the terms of a collective bargaining agreement, a school committee was required to approve transfer requests of incumbent school principals, whose qualifications were unquestioned, to vacant principalships [56-59]; an arbitrator neither exceeded the scope of his authority nor infringed upon the exclusive managerial prerogative of the committee by directing it to appoint the applicants to the requested vacancies [59-60].

The defendants appeal from an order of a Superior Court Judge which adopted and confirmed an arbitral award in favor of the plaintiffs. The arbitration award declared that the School Committee of Boston (committee) had violated the terms of its collective bargaining agreement with the Boston Association of School Administrators and Supervisors (BASAS) by refusing to approve the transfer requests of sixteen principals, and ordered as a remedy for this violation approval of the sixteen transfers, effective June 30, 1976. A Justice of the Appeals Court granted the committee's application for a stay of the Superior Court's order pending this appeal, and ordered that the committee not fill any of the sixteen vacant positions in a manner inconsistent with the arbitration award. We conclude that there was no error, and that judgment shall be entered accordingly.

In late 1975 sixteen school principals in the bargaining unit represented by BASAS applied for transfers to vacant principalships within the Boston public school system. In January, 1976, the superintendent of the Boston public school system approved these transfer requests and submitted them to the committee. In March, 1976, the committee disapproved all sixteen requests and the superintendent then solicited applications for the positions under a promotional rating procedure which involves community participation in appointments of principals. In April, 1976, BASAS filed a demand for arbitration on the ground that the committee's disapproval of the sixteen transfer requests violated articles 6 and 10 of the collective bargaining agreement then in force. In May, 1976, after a hearing at which the parties had an opportunity to present testimony and argument, the arbitrator rendered his award and opinion supporting the BASAS position.

The arbitrator found that the parties entered into a collective bargaining agreement covering the 1972-1973 school year which provided that all privileges and benefits previously enjoyed by principals would continue in effect. This agreement was supplemented by the "Leftwich proposal," a plan which established a procedure governing appointments to vacant principalships with a view to community participation in the selection process, and which, in amended form, preserved existing transfer rights of incumbent principals. The parties again preserved the established transfer rights of principals, with some additions and modifications, by incorporating their 1973 agreement in their successor agreement. No one disputes that this successor agreement covers the committee's actions in this case.

The arbitrator also found an established committee practice of approving transfer requests of incumbent principals who were nominated by the superintendent of schools. This practice constituted a "privilege" enjoyed by principals within the meaning of the parties' agreement.

The arbitrator concluded that the parties were obliged to employ the Leftwich proposal (incorporated in their collective bargaining agreement) for filling vacant principalships. *fn3 Under this arrangement, all vacant principalships were to be filled through a promotional rating system except those positions filled through transfers of incumbent principals whose competence to fill the positions requested was not questioned by the committee. The arbitrator decided that the committee rejected the proposed transfers, not because of the applicants' unsuitability, but because of a desire to use the promotional rating procedure to fill all existing vacancies. *fn4 Rejection of the proposed transfers on this basis was impermissible under the express terms of the parties' contractual obligations. Concluding that disputes over committee transfer decisions are arbitrable, he directed the committee to comply with its past practice, contractually preserved, by appointing the sixteen applicants to the requested vacancies.

The committee has not complied with this arbitral order. It argues that the arbitrator exceeded his authority, see G. L. c. 150C, § 11 (a) (3), in deciding a dispute over inter school transfers of incumbent personnel, because such matters are within the exclusive managerial prerogative of the committee. For the same reason, the committee maintains, provisions of their collective bargaining agreement cannot prevent them from changing the manner in which they select school principals. Finally, the committee claims that, even if the arbitrator had authority to decide disputes concerning principals' transfer rights, he had no remedial authority to order approval of the proposed transfers.

We conclude that the Judge properly confirmed the arbitrator's award. The subject matter of this dispute is not within the exclusive managerial prerogative of the committee and is therefore a proper subject for negotiation and arbitration. Moreover, the arbitrator had authority to order that the committee follow its past practice and approve the sixteen transfer requests.

1. The central issue in this case is whether the committee is bound to approve transfer requests of incumbent principals whose qualifications are unquestioned. An arbitrator determined that the committee agreed to approve such requests and that the committee is bound to comply with its agreement. Despite its agreement to approve such requests and to submit disputes over the scope of its agreement to arbitration, the committee now contends that principals' assignments involve decisions so predominantly within the realm of educational management that they are not proper subjects of collective bargaining or of arbitration. Cf. School Comm. of Hanover v. Curry, 369 Mass. 683 (1976); School Comm. of Braintree v. Raymond, 369 Mass. 686 (1976) (abolition of school position is matter of educational policy and not proper subject of arbitration); G. L. c. 150C, § 11 (a) (3).

The committee claims that the selection for each school of an appropriate principal constitutes a committee decision which cannot be delegated to an arbitrator or abandoned by agreement. While the committee may be correct in its claim, we need not decide that issue today, because the agreement and the arbitral award involved in this case do not address such a right. They address the manner in which the committee selects principals for particular schools and they permit committee disapproval of any inappropriate transfer. See note 4, (supra) . Cf. School Comm. of Danvers v. Tyman, 372 Mass. 106, 114 (1977) (agreement to follow certain procedures before exercising right to decide tenure and to permit arbitration of claims concerning these procedures does not impermissibly affect exclusive committee right to make ultimate tenure decision); Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455, 461 (1976) (agreement on number of substitute teachers relates to ...


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