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17-P-103                                            Appeals Court

 SPENCER-EAST BROOKFIELD REGIONAL SCHOOL DISTRICT vs.       SPENCER-
             EAST BROOKFIELD TEACHERS' ASSOCIATION.


                            No. 17-P-103.

           Worcester.     January 16, 2018. - June 4, 2018.

              Present:   Trainor, Massing, & Singh, JJ.


School and School Committee, Arbitration, Collective bargaining,
     Termination of employment. Arbitration, School committee,
     Collective bargaining. Public Employment, Collective
     bargaining, Termination. Education Reform Act. Practice,
     Civil, Stay of proceedings, Moot case.



     Civil action commenced in the Superior Court Department on
May 13, 2016.

     An application for a stay of arbitration was heard by Brian
A. Davis, J., and entry of judgment was ordered by David
Ricciardone, J.


    Laurie R. Houle for the defendant.
    James P. Hoban for the plaintiff.


    TRAINOR, J.     The Spencer-East Brookfield Teachers'

Association (association) appeals from a judgment of the

Superior Court permanently staying the grievance arbitration
                                                                       2


proceeding commenced by the association before the Department of

Labor Relations (DLR).     The association argues that the

arbitration became moot once the teacher involved

withdrew his grievance, and, thus, the matter should have been

dismissed.     At the same time, the association argues that the

teacher had an absolute right to arbitrate an alleged collective

bargaining agreement (CBA) violation that preceded his

termination.    The association maintains that it is irrelevant

that the teacher did not have professional teacher status, that

he had been employed for less than ninety days, and that

reinstatement was the remedy being sought.    We affirm.1

    Background.     The Spencer-East Brookfield Regional School

District (district) and the association entered into a CBA that

covered the period July 1, 2015, through June 30, 2018.       Edward

Suglia was hired by the district in December, 2015.     His

employment was terminated on January 15, 2016, after

approximately forty-four days of employment with the district.

On January 19, 2016, the association filed a grievance on behalf

of Suglia which asserted that his "rights under the Collective

Bargaining Agreement were violated by the school committee . . .

when he was terminated . . . without the supports and process




    1  Our review of this matter is de novo. See Wheatley v.
Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600
(2010).
                                                                   3


that are contractually guaranteed."   The school committee,

pursuant to Level Four of Article XX of the CBA, determined that

it had no jurisdiction over the grievance because it was a

personnel matter, and notified the association that it could

proceed to Level Five of the grievance procedure.2

     In April, 2016, the association filed a petition to

arbitrate Suglia's termination with the DLR.   The petition

asserted that the termination violated the terms of the CBA

because the district had failed in its obligations pursuant to

Article XVI and Article VIII of the CBA.3   The association

specifically asserted that Suglia's termination violated the

provisions of the "Educator Evaluation Process" instrument,

which provides a procedure for evaluating teacher progress and

is incorporated by reference into the parties' CBA.4   As




     2 "Article XX -- Grievance Procedure" of the CBA outlines
the five levels of the grievance process. Level Five allows the
association to seek arbitration if the matter has not been
resolved to its satisfaction at Level Four.

     3 "Article XVI -- Teacher/Nurse Evaluation" outlines an
evaluation process for all teachers and nurses. Professional
status and nonprofessional status employees are provided
different procedures and rights under the article; "Article VIII
-- Policy for Cooperating Teachers and Mentors" outlines the
relationship between cooperating teachers and student teachers
and the requirement that a newly hired teacher be assigned a
certified mentor teacher.

     4 The district denied any violation of the evaluation
process.
                                                                    4


remedies, the petition sought "[r]einstatement; make grievant

whole; and any and all additional appropriate remedy."

    Pursuant to G. L. c. 150C, § 2(b), the district sought a

permanent stay of the grievance arbitration proceedings that had

been commenced in the DLR, on the ground that the association's

demand was not arbitrable.   The Superior Court issued an order,

dated September 7, 2016, allowing the district's application to

stay the grievance arbitration, and finding that, in the

circumstances of this case, the association had no right to

grievance arbitration under the CBA and that its remedy existed

exclusively in statute.    Shortly thereafter, because the matter

was pending in the Superior Court, the association sought and

obtained a temporary administrative closure of the grievance

arbitration proceedings.

    The district then notified the DLR of the court's order

staying the arbitration proceedings and requested the dismissal

of the arbitration proceeding.   The association filed an

opposition to the requested dismissal.    On October 28, 2016,

however, the association withdrew its petition for grievance

arbitration before the DLR and notified the Superior Court that

the "Plaintiff's petition to stay arbitration is now moot and

there is no need for further proceedings beyond the decision

already issued by this Court."   The district responded by

seeking entry of judgment permanently staying the grievance
                                                                    5


arbitration sought by the association.    A judge of the Superior

Court allowed the motion, determining that the issue in dispute

had been decided on the merits and had been fully adjudicated.

He further found that the issue raised as to whether the CBA

"may provide for arbitration of teachers' rights that transcend

the ones particular to [the] terminated member . . . merits

resolution despite the . . . withdrawal of [the] arbitration

petition," and that the matter was not moot.    The association

appeals from that determination.

    Discussion.   The association argues that the Superior Court

should have dismissed, as being moot, the district's motion for

entry of judgment because the association had withdrawn the

petition for grievance arbitration, with prejudice.   As we have

noted, the judge considered and rejected this argument when

allowing the district's motion.    See Wolf v. Commissioner of

Pub. Welfare, 367 Mass. 293, 298-299 (1975) (in case "of

asserted importance, capable of repetition, yet evading review

. . . a court should take particular care that judicial review

not be foreclosed on the basis of technical mootness" [citations

and quotations omitted]).   Here, the association had argued that

"the issue presented may deal with important rights of all

teachers covered by its collective bargaining agreement, an

agreement that the [association] argued at hearing may be

'nullified' by the court action here."   We, however, agree with
                                                                   6


the judge that the matter is not moot, and will therefore

consider the court's legal holding.

     The association argues that it has the right to arbitrate a

purported violation of the CBA that preceded the district's

termination of Suglia's employment.5   Teacher dismissals are

governed by the statutory scheme contained in G. L. c. 71, § 42.6


     5 Significantly, Suglia was terminated from his position on
January 15, 2016, but the association filed the grievance on
January 19, 2016, claiming that he had been "terminated . . .
without the supports and process that are contractually
guaranteed."

     6 General Laws. c. 71, § 42, as appearing in St. 1993,
c. 71, § 44, reads in pertinent part:

          "A teacher who has been teaching in a school system
     for at least ninety calendar days shall not be dismissed
     unless he has been furnished with written notice of intent
     to dismiss and with an explanation of the grounds for the
     dismissal in sufficient detail to permit the teacher to
     respond and documents relating to the grounds for
     dismissal, and, if he so requests, has been given a
     reasonable opportunity within ten school days after
     receiving such written notice to review the decision with
     the principal or superintendent, as the case may be, and to
     present information pertaining to the basis for the
     decision and to the teacher's status. The teacher
     receiving such notice may be represented by an attorney or
     other representative at such a meeting with the principal
     or superintendent. Teachers without professional teacher
     status shall otherwise be deemed employees at will.

          "A teacher with professional teacher status, pursuant
     to section forty-one [of this chapter], 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."
                                                                    7


See Groton-Dunstable Regional Sch. Comm. v. Groton-Dunstable

Educators Assn., 87 Mass. App. Ct. 621 (2015).     Section 42

provides three different levels of procedural and substantive

due process requirements and protections for public school

teachers being terminated from their employment.

     Teachers with "professional teacher status," which they are

entitled to after three school years of consecutive service, are

afforded the greatest degree of due process rights and

protections.7   G. L. c. 71, § 41, as appearing in St. 1993,

c. 71, § 43.    See Downing v. Lowell, 50 Mass. App. Ct. 779, 783-

784 (2001); Groton-Dunstable Regional Sch. Comm. v. Groton-

Dunstable Educators Assn., supra.   The statute provides that

teachers with professional teacher status may not be terminated

from employment 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 chapter 71.   G. L. c. 71, § 42, as appearing in St.

1993, c. 71, § 44.    Such a teacher also has the statutory right

to receive written notice of the intent to terminate employment


     7 Professional teacher status may also be conferred "upon
the recommendation of the principal, . . . to any teacher who
has served in the principal's school for not less than one year
or to a teacher who has obtained such status in any other public
school district in the commonwealth." G. L. c. 71, § 41, as
amended through St. 1996, c. 450, § 127.
                                                                       8


with an explanation and documentation of the reasons sufficient

to allow the teacher to respond.     Finally, such a teacher also

has the statutory right to seek review of his or her termination

at an arbitral hearing at which he or she may present evidence

and call witnesses.   The school district carries the burden of

proof at any such hearing.   Ibid.

    A lesser degree of due process protection is afforded to

public school teachers who have not attained professional

teacher status but who have been teaching in a school system for

at least ninety calendar days but less than three consecutive

school years.   Such a teacher shall not be dismissed unless he

or she has been "furnished with written notice of intent to

dismiss and with an explanation of the grounds for the dismissal

in sufficient detail to permit the teacher to respond and

documents relating to the grounds for dismissal."     Ibid.    Such a

teacher shall also have the right, if requested, to review the

decision to terminate employment with the principal or

superintendent and to "present information pertaining to the

basis of the decision and to the teacher's status."    Ibid.     The

teacher may be represented by an attorney or other

representative at such a meeting.    The statute does not provide

the right, however, for such a teacher to review the decision to

terminate employment by filing a petition to arbitrate.       Ibid.
                                                                     9


     Lastly, a public school teacher who has not attained

professional teacher status and who has held his or her teaching

position for less than ninety calendar days has no statutory

protections provided by G. L. c. 71, § 42.     "Teachers without

professional teacher status [(i.e., those teachers who have

worked less than ninety calendar days)] shall otherwise be

deemed employees at will."   Ibid.    "Employment at will is

terminable by either the employee or the employer without

notice, for almost any reason or for no reason at all."8       Jackson

v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9

(1988).   See Merola v. Exergen Corp., 423 Mass. 461, 464 (1996)

(with certain narrow exceptions derived from public policy,

"[p]rinciples of employment law permit the termination of

employees at will, with or without cause").

     General Laws c. 71, § 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."




     8 "Of course, there are certain restrictions on an
employer's ability to discharge an employee at will[, none of
which are present or applicable here]. See, e.g., DeRose v.
Putnam [Mgmt.] Co., 398 Mass. 205, 208-210 (1986) (liability for
discharge in violation of public policy); Fortune v. National
Cash Register Co., 373 Mass. 96, 104-105 (1977) (obligation of
good faith and fair dealing); G. L. c. 151B, § 4 (1986 ed.)
(prohibition against discrimination in employment)." Jackson v.
Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988).
                                                                  10


    We have previously addressed the question of how the

statutory scheme contained in G. L. c. 71, §§ 41 et seq.,

applies when there are potentially contradictory provisions

contained in the statute and a CBA that is binding on all the

parties.   In particular, we concluded that G. L. c. 71, § 42,

provides the exclusive remedy for a public school teacher who

claims to be aggrieved by his or her termination of employment

irrespective of the provisions of any applicable CBA.   Since the

enactment of St. 1993, c. 71, the Education Reform Act of 1993,

we have "consistently held that the source, authority, and scope

of arbitration for terminated teachers derive from [G. L.

c. 71,] § 42, not from contract -- regardless of the existence

of terms of a collective bargaining agreement."   Groton-

Dunstable Regional Sch. Comm. v. Groton-Dunstable Educators

Assn., 87 Mass. App. Ct. at 623.

    The association argues that nothing in the controlling

statutes prohibits the "arbitration of violations of negotiated

evaluation procedures and other contract rights when a district

non-renews or dismisses a teacher."   The association relies on

School Comm. of Hull v. Hull Teachers Assn., MTA/NEA, 69 Mass.

App. Ct. 860 (2007), and School Comm. of Pittsfield v. United

Educators of Pittsfield, 438 Mass. 753 (2003), for support of
                                                                  11


its argument.   However, given the facts and legal issues that we

consider here, both cases are inapposite.9

     While the Education Reform Act of 1993 exempted then-

existing CBAs the provisions of which were contrary to § 42, it

also mandated that "[c]ollective bargaining agreements effective

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

said section[] [42]."   Groton-Dunstable Regional Sch. Comm. v.

Groton-Dunstable Educators Assn., 87 Mass. App. Ct. at 623,

quoting from St. 1993, c. 71, § 77.   The CBA and the evaluation

instrument that the association relies upon as the basis for its

arbitration demand were executed well after the Education Reform

Act was enacted in 1993.




     9 In School Comm. of Hull, supra, a teacher grieved the
school committee's decision not to renew her employment,
claiming that the committee had violated the CBA by failing to
follow the evaluation procedures set forth in the CBA. The
teacher had not attained professional teacher status, but she
had worked for more than ninety days, and thus was entitled to
the statutory due process rights conferred by G. L. c. 71, § 42,
second par. An arbitrator ordered her reinstated, and this
court affirmed, concluding that the CBA provisions were
consistent with the statutory due process rights conferred by
§ 42 as a prerequisite to nonrenewal of employment. Here, in
contrast, Suglia had worked for the district for less than
ninety days, and thus was afforded no due process rights under
§ 42. School Comm. of Pittsfield, supra, unlike the case at
bar, did not concern a teacher's dismissal, but, rather, her
involuntary transfer to another school district. The court
determined that the issue was governed exclusively by the CBA
and not by statute. Arbitration was therefore the appropriate
remedy.
                                                                     12


     Moreover, the teacher here was an employee at will, had no

statutory due process rights controlling his termination from

employment, and had been terminated from employment before the

association filed the grievance alleging violation of the CBA's

evaluation requirements.     At the time that the association filed

the grievance on behalf of the teacher, Suglia was no longer

employed by the district.    He had been terminated pursuant to

the provisions of § 42 and was no longer entitled to the

benefits of the CBA.10    The exclusivity provision of § 42 applies

here, and the association had no right to pursue arbitration on

behalf of a terminated teacher who had worked for the district

for less than ninety days.     Suglia was no longer an employee of

the district and the association's remedy existed exclusively in

§ 42.     Accordingly, the Superior Court's judgment dated December

12, 2016, based on the court's order dated September 7, 2016,

permanently staying the grievance arbitration proceeding

commenced by the association before the DLR (Case No. ARB-16-

5201), is affirmed.

                                      So ordered.




     10As we have noted, Suglia was terminated from his position
on January 15, 2016, and the association filed the grievance on
January 19, 2016. The CBA applies to active members of the
association or those members who have the right to grieve their
termination. Suglia does not fit into either category. See
School Comm. of Hull, supra; Groton-Dunstable Regional Sch.
Comm., supra.
