NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-220
GREATER LOWELL TECHNICAL HIGH SCHOOL SCHOOL COMMITTEE
vs.
GREATER LOWELL REGIONAL TEACHERS ASSOCIATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Greater Lowell Technical High School School
Committee (school committee), the governing body of the Greater
Lowell Technical High School (district), filed a complaint in
the Superior Court seeking a permanent stay of an arbitration of
a grievance filed by the defendant, Greater Lowell Regional
Teachers Association (union). See G. L. c. 150C, § 2.
Following a hearing on cross motions for judgment on the
pleadings, the judge allowed the school committee's motion,
denied the union's motion, and entered a judgment permanently
staying the union's request for arbitration. On the union's
appeal, we affirm.
Background. As relevant here, the school committee and the
union were parties to a collective bargaining agreement (CBA)
from July 1, 2018 to June 30, 2021. Since 2002, Robert Jones has been employed as a teacher and is a union member. The
district superintendent-director appoints all coaching positions
on an annual basis. He appointed Jones as the varsity girls'
softball coach for the school years 2015-2016, 2016-2017, and
2017-2018.
On May 24, 2018 an incident occurred during a varsity
girls' softball game that resulted in the issuance of a letter
of reprimand to Jones. 1 The union filed a grievance on Jones's
behalf. The grievance was resolved in December 2018 when the
parties entered into a memorandum of agreement (MOA). The MOA
provided, inter alia, that the letter of reprimand would be
removed from Jones's personnel file on March 31, 2019, provided
that Jones "d[id] not engage in misconduct."
In February 2019, the district posted spring athletic
coaching positions; Jones was one of five people who applied for
the varsity girls' softball coaching position. Jones was
interviewed by a panel of three school employees, one of whom
witnessed the May 2018 incident. The panel unanimously
recommended someone other than Jones for the position. Jones
was not reappointed.
1 The district received complaints that Jones screamed at students, called students names, and threatened to "body slam" students and other coaching staff.
2 In April 2019, the union filed a grievance on Jones's
behalf challenging the interview process for the girls' varsity
softball coach appointment. The grievance was denied at each of
the first four grievance levels on the grounds that the school
committee did not violate the CBA. On January 16, 2020, the
union filed a demand for arbitration pursuant to level five of
the CBA's grievance procedure, contending that the school
committee violated the CBA "by the manner in which interviews
were conducted and . . . by the non-selection" of Jones as the
varsity girls' softball coach. The school committee responded
by filing a complaint in the Superior Court to stay arbitration
arguing that the issue presented was a core managerial decision
committed by statute to the superintendent-director, and thus
not arbitrable.
Jones also filed a complaint with the Massachusetts
Commission Against Discrimination (MCAD) for the school
committee's failure to reappoint him to the girls' varsity
softball coaching position. In its submission to MCAD, the
school committee acknowledged that Jones was not reappointed
because of the incident that led to his reprimand.
Discussion. We review de novo an order allowing a motion
for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365
Mass. 754 (1974). See Reilly v. Hopedale, 102 Mass. App. Ct.
367, 377 (2023). The union contends that there is "no
3 meaningful distinction between the coach appointment process and
the substantive decision," and thus the matter must be
arbitrated. The school committee responds that the interview
process, and the union's request that Jones be appointed the
coach, lies exclusively within the superintendent-director's
decision-making authority pursuant to G. L. c. 71, § 47A
(superintendent may contract to employ athletic coaches), and
thus is not arbitrable.
Massachusetts recognizes a strong public policy in favor of
arbitration of disputes. See School Comm. Of Pittsfield v.
United Educators of Pittsfield, 438 Mass. 753, 758 (2003). For
that reason, where a CBA contains an arbitration clause, "there
is a presumption of arbitrability in the sense that an order to
arbitrate the particular grievance should not be denied unless
it may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers the
asserted dispute" (quotation omitted). Local No. 1710, Int'l
Ass'n of Firefighters, AFL-CIO v. Chicopee, 430 Mass. 417, 421
(1999). This is particularly true where the arbitration clause
is broad. See id. However, "[e]ven a broad clause . . . does
not make arbitrable questions that a statute or agreement places
beyond the authority of arbitrators." Lawrence v. Lawrence
Patrolmen's Ass'n, 56 Mass. App. Ct. 704, 707 (2002). Indeed,
G. L. c. 150C, § 2 (b), provides that an arbitration proceeding
4 may be stayed if "there is no agreement to arbitrate, or . . .
the claim sought to be arbitrated does not state a controversy
covered by the provision for arbitration and disputes concerning
the interpretation or application of the arbitration provision
are not themselves made subject to arbitration."
Two provisions of the CBA are at issue here. Article II,
section A, defines a grievance as a claim of "misrepresentation,
inequitable application or violation of any provisions of the
[CBA]," of a policy or practice of the school committee, or
dissatisfaction with employment or working conditions. Article
III section L of the CBA provides that coaching positions can be
changed by administrative recommendation and that these
assignments are "properly an administrative function and
responsibility."
The union contends that Article II section A is broad, and
therefore all disputes regarding it are subject to arbitration.
The school committee responds that the appointment of an
athletic coach is an administrative function pursuant to Article
III section L, and that by statute, the superintendent-director
is the appointing authority for athletic coaches. We agree with
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-220
GREATER LOWELL TECHNICAL HIGH SCHOOL SCHOOL COMMITTEE
vs.
GREATER LOWELL REGIONAL TEACHERS ASSOCIATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Greater Lowell Technical High School School
Committee (school committee), the governing body of the Greater
Lowell Technical High School (district), filed a complaint in
the Superior Court seeking a permanent stay of an arbitration of
a grievance filed by the defendant, Greater Lowell Regional
Teachers Association (union). See G. L. c. 150C, § 2.
Following a hearing on cross motions for judgment on the
pleadings, the judge allowed the school committee's motion,
denied the union's motion, and entered a judgment permanently
staying the union's request for arbitration. On the union's
appeal, we affirm.
Background. As relevant here, the school committee and the
union were parties to a collective bargaining agreement (CBA)
from July 1, 2018 to June 30, 2021. Since 2002, Robert Jones has been employed as a teacher and is a union member. The
district superintendent-director appoints all coaching positions
on an annual basis. He appointed Jones as the varsity girls'
softball coach for the school years 2015-2016, 2016-2017, and
2017-2018.
On May 24, 2018 an incident occurred during a varsity
girls' softball game that resulted in the issuance of a letter
of reprimand to Jones. 1 The union filed a grievance on Jones's
behalf. The grievance was resolved in December 2018 when the
parties entered into a memorandum of agreement (MOA). The MOA
provided, inter alia, that the letter of reprimand would be
removed from Jones's personnel file on March 31, 2019, provided
that Jones "d[id] not engage in misconduct."
In February 2019, the district posted spring athletic
coaching positions; Jones was one of five people who applied for
the varsity girls' softball coaching position. Jones was
interviewed by a panel of three school employees, one of whom
witnessed the May 2018 incident. The panel unanimously
recommended someone other than Jones for the position. Jones
was not reappointed.
1 The district received complaints that Jones screamed at students, called students names, and threatened to "body slam" students and other coaching staff.
2 In April 2019, the union filed a grievance on Jones's
behalf challenging the interview process for the girls' varsity
softball coach appointment. The grievance was denied at each of
the first four grievance levels on the grounds that the school
committee did not violate the CBA. On January 16, 2020, the
union filed a demand for arbitration pursuant to level five of
the CBA's grievance procedure, contending that the school
committee violated the CBA "by the manner in which interviews
were conducted and . . . by the non-selection" of Jones as the
varsity girls' softball coach. The school committee responded
by filing a complaint in the Superior Court to stay arbitration
arguing that the issue presented was a core managerial decision
committed by statute to the superintendent-director, and thus
not arbitrable.
Jones also filed a complaint with the Massachusetts
Commission Against Discrimination (MCAD) for the school
committee's failure to reappoint him to the girls' varsity
softball coaching position. In its submission to MCAD, the
school committee acknowledged that Jones was not reappointed
because of the incident that led to his reprimand.
Discussion. We review de novo an order allowing a motion
for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365
Mass. 754 (1974). See Reilly v. Hopedale, 102 Mass. App. Ct.
367, 377 (2023). The union contends that there is "no
3 meaningful distinction between the coach appointment process and
the substantive decision," and thus the matter must be
arbitrated. The school committee responds that the interview
process, and the union's request that Jones be appointed the
coach, lies exclusively within the superintendent-director's
decision-making authority pursuant to G. L. c. 71, § 47A
(superintendent may contract to employ athletic coaches), and
thus is not arbitrable.
Massachusetts recognizes a strong public policy in favor of
arbitration of disputes. See School Comm. Of Pittsfield v.
United Educators of Pittsfield, 438 Mass. 753, 758 (2003). For
that reason, where a CBA contains an arbitration clause, "there
is a presumption of arbitrability in the sense that an order to
arbitrate the particular grievance should not be denied unless
it may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers the
asserted dispute" (quotation omitted). Local No. 1710, Int'l
Ass'n of Firefighters, AFL-CIO v. Chicopee, 430 Mass. 417, 421
(1999). This is particularly true where the arbitration clause
is broad. See id. However, "[e]ven a broad clause . . . does
not make arbitrable questions that a statute or agreement places
beyond the authority of arbitrators." Lawrence v. Lawrence
Patrolmen's Ass'n, 56 Mass. App. Ct. 704, 707 (2002). Indeed,
G. L. c. 150C, § 2 (b), provides that an arbitration proceeding
4 may be stayed if "there is no agreement to arbitrate, or . . .
the claim sought to be arbitrated does not state a controversy
covered by the provision for arbitration and disputes concerning
the interpretation or application of the arbitration provision
are not themselves made subject to arbitration."
Two provisions of the CBA are at issue here. Article II,
section A, defines a grievance as a claim of "misrepresentation,
inequitable application or violation of any provisions of the
[CBA]," of a policy or practice of the school committee, or
dissatisfaction with employment or working conditions. Article
III section L of the CBA provides that coaching positions can be
changed by administrative recommendation and that these
assignments are "properly an administrative function and
responsibility."
The union contends that Article II section A is broad, and
therefore all disputes regarding it are subject to arbitration.
The school committee responds that the appointment of an
athletic coach is an administrative function pursuant to Article
III section L, and that by statute, the superintendent-director
is the appointing authority for athletic coaches. We agree with
the school committee that Jones's non-selection as the girls'
varsity softball coach is not arbitrable. See School Comm. of
Natick v. Education Ass'n of Natick, 423 Mass. 34, 41 (1996)
(athletic coach appointment is "statutorily created nondelegable
5 right of management [that] cannot be abrogated by the [CBA],"
and therefore is not arbitrable).
The union's purported distinction between the appointment
process and the appointment itself lacks a substantive practical
effect as there is no discernible difference between the two.
This is best illustrated by the initial grievance wherein the
union requested that the interviews be redone, and that Jones be
appointed the girls' varsity softball coach. Moreover, the
record does not support the union's claim of an unfair process
as nothing in the MOA or the timing of the interviews prohibited
consideration of the incident that gave rise to the letter of
reprimand. In fact, the interviews were conducted in February
2019, one month before the letter of reprimand was to be removed
from Jones's personnel file. Regardless of how the union framed
the issue, the superintendent-director's exercise of judgment in
a nondelegable decision is not subject to arbitration. See
Massachusetts Community College Council v. Massachusetts Bd. of
Higher Educ./Roxbury Community College, 465 Mass. 791, 798
(2013) ("manner in which [the union member] was denied tenure
does not change the fact that at bottom, the denial of . . .
tenure was the issue)(quotations omitted); 2 Massachusetts Bd. of
2 We acknowledge that the motion judge relied on an Appeals Court case that was subsequently superseded by the Supreme Judicial Court. Compare Massachusetts Community College Council, 465 Mass. 791, with Massachusetts Community College Council v.
6 Higher Educ./Holyoke Community College v. Massachusetts Teachers
Ass'n/Mass. Community College Council/Nat'l Educ. Ass'n, 79
Mass. App. Ct. 27, 34 (2011) (college administrator's exercise
of judgment as to which candidate was best qualified not
arbitrable). 3
Judgment affirmed.
By the Court (Green, C.J., Blake & Henry, JJ. 4),
Clerk
Entered: November 27, 2023.
Massachusetts Bd. of Higher Educ./Roxbury Community College, 81 Mass. App. Ct. 554 (2012). However, the subsequent opinion of the Supreme Judicial Court applied an essentially similar analysis to the question. In any event, as our review is de novo, this does not impact our analysis. See Reilly, 102 Mass. App. at 377. 3 To the extent that the union contends the parties agreed to
arbitrate the procedure for the appointment of athletic coaches, that contention is not supported by the record. See CBA Article III, Section L. The provision of the CBA cited by the union (Article X) does not apply to one-year appointments such as the coaching position at issue in the present case. 4 The panelists are listed in order of seniority.