In School Comm. of Lowell v Oun, 07-P-184 (Sept. 25, 2008), the Appeals Court upheld an arbitrator’s decision to reinstate three wrongfully-terminated teachers with full back pay and benefits.  In a possibly disturbing signal that could disrupt future judicial review of arbitration cases, the Court hinted that it can freely review evidentiary decisions of an arbitrator and significantly broaden the “public policy” arguments that may overturn arbitration awards.  The decision simultaneously discourages and encourages public employers to litigate “final and binding” arbitration decisions.

            In this case, Lowell schools terminated three teachers pursuant to G.L. c. 71A, § 4, which mandates that “all children shall be placed in English language classrooms” conducted by teachers “fluent and literate in English.” The Massachusetts Department of Education (“DOE”) provides guidelines and regulations for determining a teacher’s fluency.  These guidelines and regulations specify that if a teacher’s fluency is not apparent during classroom observation, then it may be demonstrated through testing. 

Here, all three teachers had professional, or tenured, status and were born outside of the U.S.  Prior to their terminations in 2003, all three teachers had received satisfactory evaluations.  Lowell Schools conducted no classroom observation and instead tested the teachers several times, including exams unapproved by the DOE.  The teachers failed these exams.  As a result Lowell then terminated the teachers.

            In a controversial part of his decision, the arbitrator excluded the teachers’ DoE test scores because they were unable to cross-examine the DoE test graders and because the School failed to evaluate the teachers’ fluency through classroom observation.  Without the DoE scores, the arbitrator concluded that the School could not justify its termination of the teachers.  As a separate basis to reinstate the teachers, the arbitrator reasoned that Lowell’s reliance on the DoE scores, even if valid, violated state anti-discrimination law because Lowell never used the test against native English-speaking teachers. 

            Lowell Schools appealed the arbitrator’s decision to the Superior Court.  The Superior Court ruled in favor of the teachers.  Lowell Schools appealed again.  The Appeals Court upheld the arbitrator’s decision to exclude the test scores.  As the court acknowledged, an arbitrator’s legal conclusions and factual findings, even if incorrect, are beyond judicial review.  Instead of relying on this cornerstone of arbitration law and dismissing Lowell Schools’ complaint out of hand, the Court reviewed the arbitrator’s reasoning in excluding the test results before it concluded that there was no error.  This extended analysis, therefore, should be considered dicta and non-precedential. 

More troubling, however, is the Court’s discussion of the public policy limitation. A court may overturn an arbitration decision on public policy grounds only if (1) the public policy is well-defined and dominant and ascertained by reference to the laws and legal precedents and not from general public interest considerations; (2) the discharged employee’s disfavored conduct must be integral to the performance of employment duties; and, (3) the reinstated employee’s conduct would have required dismissal.  Here, the Schools took issue with the arbitrator’s findings that the decision not to test native English speakers for fluency violated state anti-discrimination law, that the personal qualities of the teachers overrode any fluency problems, and that the Schools retrain and reassign, not terminate, teachers with fluency problems.  In an invitation to public employers to litigate arbitration decisions on this issue, the Court refused to state whether the employer’s assertions, if true, fall within the public policy basis to overturn awards.  The Court ruled that the arbitrator’s conclusion that the Schools inadequately assessed the fluency of the teachers is sufficient to reinstate the teachers and is immune from judicial review.   

In Driscoll v. Worcester Telegram & Gazette, #07-P-344 (September 25, 2008), the Appeals Court has ruled that a 21-year veteran paper deliverer for eight major newspapers is an “employee” and therefore eligible for unemployment benefits. The Court rejected the employer’s gambit of classifying news carriers as “independent contractors.” To support its argument that the newspaper deliverer was not an “employee,” the newspaper actually boasted that the delivererhad the independent authority to decide “whether to wrap the papers in plastic or rubber bands, and where to purchase these supplies.” Thankfully, the Court rejected this evidence as trivial and noted how the terms and conditions of employment were controlled and directly supervised by the employer. This victory for the news carrier entitles him to very modest financial and job assistance as he attempts to transition to a new employer.

In Weinburgh v. Civil Service Commission & City of Haverhill (07-P-1692)(Sept. 4, 2008), the Appeals Court ruled that a candidate for promotion may sit for a promotional exam even if the candidate did not actually serve a full year in the rank immediately below the promotional position. In reaching this interpretation, the Court disregarded the interpretation of the Civil Service Commission, the agency primarily responsible for enforcing Chapter 31.

General Laws Chapter 31, §59 governs the process for competitive promotional examinations for public safety positions in Civil Service communities. The law limits candidates to police officers and fire fighters who have “been employed in such force for at least one year after certification in the lower title or titles to which the examination is open.”

The case of Weinburgh concerned the eligibility of a Haverhill fire lieutenant to sit for the captain’s exam held in November 2004. The examination was open only to lieutenants. The individual firefighter was certified on the lieutenant’s promotion list in Summer 2003, although he was not actually promoted to that rank until December. (To further complicate matters, the Commission backdated his seniority to October 2003). The issue presented by Weinburgh therefore is whether a promotional candidate must actually serve for one year in the lower rank in order to sit for the promotional exam – in other words whether Weinburgh must have worked for one year as a lieutenant prior to taking a captain’s exam limited to lieutenants. The Commission interpreted G.L. c.31, §59 to require one year of “actual service” as a lieutenant.

Courts are supposed to defer to an agency’s interpretations of the law. Yet here, the Appeals Court overruled the Commission’s interpretation of G.L. c.31, §59. The Court ruled that the one year requirement for promotions begins once the employee has been certified for the rank below the rank involved in the examination, even if the employee did not serve an entire year in the inferior rank. In other words, Weinburgh was permitted to sit for the captain’s exam, even though he did not actually work as a lieutenant for one year before the exam. The Appeals Court ruled that Weinburgh met the statutory one-year requirement because he was certified for lieutenant’s position more than a year prior to the exam (Summer 2003) and subsequent to this certification he actually worked for one year for the Department (as a firefighter or lieutenant – though the exam was limited to lieutenants).

Weinburgh’s emphasis on technical service in rank above actual service in rank stands in provocative contrast to the SJC case of Police Com’r of Boston v. Cecil, 431 Mass. 410 (2000). In Cecil, the SJC interpreted a one-year requirement under Civil Service laws – this time dealing the probationary period of police officers under G.L. c.31, §61. The SJC ruled that the police officer must actually work as a police officer for 12 months in order to obtain tenure, even if the officer had been on the Department rolls for more than one year (the SJC excluded the officer’s time spent on paid administrative leave).