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06/26/78 BERKSHIRE HILLS REGIONAL SCHOOL DISTRICT

June 26, 1978

BERKSHIRE HILLS REGIONAL SCHOOL DISTRICT COMMITTEE
v.
BERKSHIRE HILLS EDUCATION ASSOCIATION & OTHERS *FN1



Berkshire. Civil action commenced in the Superior Court on April 27, 1976. The case was heard by Hayer, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Quirico, Braucher, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Arbitration, Jurisdiction, Enjoining arbitration. School and School Committee, Appointment of principal.

The opinion of the court was delivered by: Quirico

The appointment of a principal is a decision committed to the non-delegable authority of a school committee under G. L. c. 71, §§ 37, 38 and 59B, and therefore it is not a proper matter for arbitration under a collective bargaining agreement. [526-529]

This is an appeal from an order, under G. L. c. 150C, § 2 (b), granting a stay of arbitration concerning a grievance asserted on behalf of the defendant Robert J. Gray, Jr., a teacher in the Berkshire Hills Regional School District (school district). The issue before us is whether the collective bargaining agreement (agreement) between the school district committee (school committee) and the Berkshire Hills Education Association (association) compels the committee to submit to arbitration a dispute concerning the claim by Gray that the committee is required to appoint him to the position of principal at the Searles Middle School. We conclude that arbitration was properly stayed for the reason that the appointment of a principal is a decision committed to the non-delegable authority of a school committee, and therefore it is not a proper matter for arbitration.

The factual background of the case, taken from the statement of agreed facts on which the Judge's decision is based, is as follows. In September, 1974, the school committee and the association, acting pursuant to G. L. c. 150E, entered into a collective bargaining agreement for the period from July 1, 1974, to June 30, 1977. The agreement set forth certain procedures to be followed in regard to vacancies and promotions arising within the school district, and provided in part that "very vacancy in any supervisory position or other professional position shall be filled by an applicant already in the employ of the District if his educational qualifications and experiences for the position shall be substantially equal to those of any other applicant not already in the employ of the District." The agreement also included a four-step procedure for resolving grievances *fn2 the last step being binding arbitration.

In October, 1975, the school committee learned that on January 31, 1976, there would be a vacancy in the position of principal at the Searles Middle School which was located within the school district and was operated under the committee's direction and supervision. The vacancy was duly and seasonably publicized by the school committee pursuant to the terms of the agreement.

The school committee received over 100 applications for the vacancy, including one from Gray, who was the only applicant already employed by the school district. The superintendent of schools (superintendent) reviewed the applications and interviewed several of the applicants. Thereafter, he forwarded the names of three applicants, including that of Gray, to be interviewed by the school committee. These interviews were conducted on January 12, 1976. Subsequently, the superintendent recommended to the school committee two of the applicants other than Gray for appointment to the principal's position. However, on being offered the position by the school committee, each of the other applicants, in successive order, declined appointment. Thereafter, the superintendent, without recommending Gray, indicated to the school committee that it could offer the position to Gray or reopen applications for the position.

The school committee did not offer the position to Gray, but instead directed the superintendent to reopen applications and publicize the position. As a result of this action, the association on February 2, 1976, filed a grievance on behalf of Gray. The grievance was processed through the first three steps of the grievance procedure, and, on March 31, 1976, when the matter had not been resolved, the association demanded arbitration.

On April 27, 1976, the school committee filed a complaint in the Superior Court seeking a stay of arbitration. A hearing was held, and, on July 27, 1976, the Judge entered an order in which he permanently enjoined arbitration proceedings because "the appointment of a principal is the exclusive non-delegable decision of the School Committee and should not be submitted to arbitration. The grievance is not a matter subject to arbitration." The defendants appealed to the Appeals Court, which affirmed the order. Berkshire Hills Regional School Dist. Comm. v. Gray, 5 Mass. App. Ct. 686 (1977). The defendants applied for further appellate review by this court, and we granted the request. G. L. c. 211A, § 11.

The power and authority of the school committee in this area derive from several sections of G. L. c. 71. Section 37 gives to a school committee "general charge" of the public schools. Section 38, as amended through St. 1974, c. 342, provides that a school committee "shall elect and contract with the teachers of the public schools, shall require full and satisfactory evidence of their moral character, and shall ascertain their qualifications for teaching and their capacity for the government of schools." Section 59B, inserted by St. 1973, c. 421, gives specific authority to a school committee to appoint school principals, and provides in part that a "school committee . . . shall employ a principal for each public school and fix his compensation. A principal employed under this section shall be the administrator of said school subject to the supervision and direction of the superintendent and subject to the regulations and policies of the school committee."

The school committee claims that under the statutory sections cited above the appointment of a principal is a decision within its sole and exclusive authority, and that the committee cannot, by a collective bargaining agreement, delegate its authority for such a decision or commit itself to binding arbitration on such an appointment. *fn3 The Appeals Court agreed with that contention. In a number of previous decisions of this court, we have outlined those areas of exclusive managerial prerogative entrusted to a school committee by G. L. c. 71, §§ 37 and 38, which are not subject to delegation, interference or control by collective bargaining agreements or provisions therein for arbitration. In School Comm. of Hanover v. Curry, 369 Mass. 683, 685 (1976), and School Comm. of Braintree v. Raymond, 369 Mass. 686, 689-690 (1976), we held that the abolition by a school committee of certain supervisory academic positions is a matter of educational policy, committed to the "nondelegable" and "exclusive" decision of the committee by G. L. c. 71, § 37. We held in those cases that it is beyond the power of a school committee to bind itself to arbitration which would interfere with such decision. Id. In Davis v. School Comm. of Somerville, 307 Mass. 354, 362 (1940), citing G. L. c. 71, §§ 37 and 38, we held that "y 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." We have also held that "school committees have the plenary power to change the duties or rank of a teacher entrusted with special duties of management or direction. Downey v. School Comm. of Lowell, 305 Mass. 329, 331 (1940). See Kelley v. School Comm. of Watertown, 330 Mass. 150, 152, 154 (1953)." School Comm. of W. Springfield v. Korbut, 373 Mass. 788, 795 (1977). In the exercise of that power school committees have an affirmative duty in the interest of their constituency to select personnel best suited for management positions. See id.; Jantzen v. School Comm. of Chelmsford, 332 Mass. 175, 177-178 (1955). *fn4

Based on these decisions, we think the power to appoint a principal comes within the area of the school committee's nondelegable, managerial prerogative over educational policy, which is not a proper subject for collective bargaining or arbitration. *fn5 As noted by the Appeals Court, " principal is charged by G. L. c. 71, ยง 59B, with the duty to 'plan, manage, operate and evaluate' a school's educational program. He is the senior management officer of the school and of the teaching staff of the school, subject only to the superintendent and the school committee itself. He is charged with responsibility for the day-to-day conduct of the school's educational program." Berkshire Hills Regional School Dist. Comm. v. ...


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