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14-P-701                                              Appeals Court

    GROTON-DUNSTABLE REGIONAL SCHOOL COMMITTEE vs.       GROTON-
                DUNSTABLE EDUCATORS ASSOCIATION.


                              No. 14-P-701.

           Middlesex.       March 9, 2015. - July 20, 2015.

           Present:     Trainor, Wolohojian, & Carhart, JJ.


School and School Committee, Professional teacher status,
     Termination of employment. Education Reform Act.
     Arbitration, Collective bargaining, School committee.
     Public Employment, Collective bargaining, Termination.



     Civil action commenced in the Superior Court Department on
November 4, 2013.

     The case was heard by Robert L. Ullmann, J., on a motion
for judgment on the pleadings.


    Laurie R. Houle for the defendant.
    Howard L. Greenspan for the plaintiff.


    WOLOHOJIAN, J.       At issue is whether the defendant union is

entitled on behalf of a terminated teacher to pursue arbitration

under the provisions of its collective bargaining agreement, or

whether it is instead required to pursue arbitration under G. L.
                                                                      2


c. 71, § 42, amended by St. 1993, c. 71, § 44.   Because we

conclude that G. L. c. 71, § 42, provides the exclusive route to

arbitrate the termination of a teacher with professional teacher

status (previously known as tenure), we affirm the judgment

resulting from the allowance of the plaintiff school committee's

motion for judgment on the pleadings.

     The school committee and the union entered into a

collective bargaining agreement (CBA) that covered the period

September 1, 2011, through August 31, 2014.   One article of the

CBA governed the arbitration of grievances, and set out detailed

procedures for such arbitration.   Another article of the CBA

provided that teachers would not "be disciplined, reprimanded,

reduced in rank or compensation, or deprived of any professional

advantages or salary increase without just cause."

     Melissa Pooler, a teacher with professional teacher status,1

was terminated by the school committee on July 16, 2013.      After

the union's grievance on behalf of Pooler was denied,2 the union

claimed arbitration under the CBA.   The school committee


     1
       See G. L. c. 71, § 41, amended by St. 1996, c. 99 ("a
teacher. . . who has served in the public schools of a school
district for three previous consecutive school years shall be
. . . entitled to professional teacher status").
     2
       At the same time, Pooler filed a petition for arbitration
under G. L. c. 71, § 42. Subsequently, however, she and the
union requested that her petition be held in abeyance to allow
the union to pursue a grievance on her behalf under the CBA.
                                                                    3


responded by suing to stay arbitration pursuant to G. L.

c. 150C, § 2.   The school committee's motion for a preliminary

injunction was allowed, as was its subsequent motion for

judgment on the pleadings.   The latter is the subject of this

appeal.3

     Section 42 of G. L. c. 71 provides, as pertinent here, that

teachers with professional teacher status (such as Pooler) may

seek to have an arbitrator review their termination in

accordance with the procedures specified in the statute.

Section 42 also provides that such a teacher "shall not be

dismissed except for inefficiency, incompetency, incapacity,

conduct unbecoming a teacher, insubordination or failure on the

part of the teacher to satisfy teacher performance standards

developed pursuant to section thirty-eight of this chapter or

other just cause."   Of particular importance here, § 42 provides

that "[w]ith the exception of other remedies provided by

statute, the remedies provided hereunder shall be the exclusive

remedies available to teachers for wrongful termination."

     The union contends that, despite the exclusivity language

just quoted, § 42 does not preclude the union from pursuing

arbitration under the provisions of the CBA.   Relying on three



     3
       Our review is de novo. Wheatley v. Massachusetts Insurers
Insolvency Fund, 456 Mass. 594, 600 (2010).
                                                                    4


cases that predate the Education Reform Act of 1993,4 the union

contends that § 42 does not limit or override G. L. c. 150E,

§ 8, which allows parties to include arbitration provisions in

collective bargaining agreements.5   It follows, in the union's

view, that § 42 is not the exclusive avenue through which a

terminated teacher, or the union on the teacher's behalf, can

pursue arbitration.

     It is not surprising that the union is unable to point to

any authority dating after 1993, when the Education Reform Act

(Act) was enacted.    The Act made sweeping changes to the

arbitration procedures available to terminated teachers, as well

as to the scope and authority of arbitrators, and the standards

those arbitrators are to apply.6   Recognizing that these changes

might be in conflict with arbitration provisions in then-

existing collective bargaining agreements, the Act provides in

     4
       Old Rochester Regional Teacher's Club v. Old Rochester
Regional Sch. Dist. Comm., 398 Mass. 695 (1986); School Comm. of
Waltham v. Waltham Educators Assn., 398 Mass. 703 (1986); School
Comm. of Needham v. Needham Educ. Assn., 398 Mass. 709 (1986).
     5
       "The parties may include in any written agreement a
grievance procedure culminating in final and binding arbitration
to be invoked in the event of any dispute concerning the
interpretation or application of such written agreement." G. L.
c. 150E, § 8, amended by St. 1989, c. 341, § 80.
     6
       "The statutory scheme governing teacher dismissals set
forth in G. L. c. 71, § 42, was enacted as part of the
[Education] Reform Act, which brought broad-based changes to the
funding and governance structure of the public education system
in Massachusetts." School Comm. of Lexington v. Zagaeski, 469
Mass. 104, 112 (2014).
                                                                    5


an uncodified provision that § 42 "shall not apply to employees

subject to collective bargaining agreements executed prior to

the effective date of this act insofar as such collective

bargaining agreements are in conflict with said section[]."       St.

1993, c. 71, § 77.   However, the Legislature clearly mandated

that "[c]ollective bargaining agreements effective after the

date of this act shall be subject to the provisions of said

section[] [42]" (emphasis added).   Ibid.   The CBA at issue in

this case was negotiated almost twenty years after the Act was

enacted.   The exclusivity provision of § 42 accordingly applies,

and the union had no right to pursue arbitration under the CBA.

Its remedy lies exclusively through § 42.

    The union also argues that Pooler is entitled to have her

termination reviewed under the "just cause" standard provided in

the CBA, rather than the standard contained in § 42.    But since

the enactment of the Act, our cases have consistently held that

the source, authority, and scope of arbitration for terminated

teachers derive from § 42, not from contract -- regardless of

the existence or terms of a collective bargaining agreement.

See, e.g., School Dist. of Beverly v. Geller, 435 Mass. 223,

229-230 (2001); Atwater v. Commissioner of Educ., 460 Mass. 844,

856-857 (2011); School Comm. of Lexington v. Zagaeski, 469 Mass.

104, 111-112 (2014); School Comm. of Chicopee v. Chicopee Educ.

Assn., 80 Mass. App. Ct. 357, 364-365 (2011).    The school
                                                                 6


committee's decision to terminate Pooler must accordingly be

assessed under the standards of G. L. c. 71, § 42.   Zagaeski,

469 Mass. at 113.

    For these reasons, arbitration under the CBA was properly

stayed.

                                  Judgment affirmed.
