MTA Scores Major Victory For Marshfield Teacher

The Massachusetts Appeals Court on January 30, 2014 affirmed an arbitrator’s award reinstating a public school teacher in Marshfield, Massachusetts.  (Read The Opinion)  The teacher was a member of the Marshfield Education Association (Union), an affiliate of the Massachusetts Teachers Association, NEA (MTA), which provided legal support.  The MTA assigned Patrick N. Bryant, formerly of Sandulli Grace, P.C., to represent the Union in the arbitration proceeding and appointed Sandulli Grace attorney John M. Becker to defend the Union when the School District appealed the arbitration award to the Superior Court and the Appeals Court.

The case had a long and tortuous history, but the key facts are as follows:  Marshfield special education teacher Gerard O’Sullivan had a teaching license when he began teaching in 2000, but like all teacher’s licenses, it expired after five years.  His attempt to obtain a new license met with delays, bureaucratic snafus, mixed messages from his employer and the state agency in charge (known by the acronym DESE), and deliberate misinformation (e.g., O’Sullivan’s School District told him that his six years of experience as a SPED teacher could not count towards his licensure, when the regulations clearly state otherwise).  During this period, however, O’Sullivan did work for at least three years with a license, which gave him professional teacher status (PTS) under the collective bargaining agreement (CBA) between his Union and the School Committee.  PTS provides certain benefits to teachers, including automatic renewal for each school year and a requirement that PTS teachers may only be discharged for cause after a hearing under the CBA and Mass. General Laws, Chapter 71, Section 42.

Despite his best efforts and the support of Union President Sarah T. Marples and MTA Consultant Joy Beckwith, O’Sullivan arrived at the end of the 2007-2008 school year with no license and no waiver from DESE.  Seeing few options, he invoked the CBA provision granting any teacher with at least six years of seniority an unpaid leave of up to one year, which would give him time to obtain his license.  But the School District denied the request, saying that absence of a license or a waiver made O’Sullivan automatically a non-employee by action of the law.  The School District said that it did not need to have a hearing, prove cause for discharge, or take any steps to end O’Sullivan’s employment because, without a license or a waiver, Mass. General Laws, Chapter 71, Section 38G automatically made him unemployed and unemployable as a teacher.

The Union grieved both the termination and the denial of unpaid leave, and the grievances proceeded to arbitration before Arbitrator Mary Ellen Shea.  Arbitrator Shea issued a 46-page award on September 15, 2010 ordering the School Committee to reinstate O’Sullivan’s employment and grant unpaid leave for the 2008-2009 school year.  She determined that O’Sullivan’s rights as a PTS teacher survived the loss of his license and he was entitled to CBA benefits such as unpaid leave.  Arbitrator Shea noted that (1) the School Committee’s argument that O’Sullivan was unemployable without a license was undermined by the fact that he continued to work as a teacher without a license or a waiver for long periods during his employment and (2) had the School District provided O’Sullivan with the due process to which he was entitled, the lack of a license would have provided adequate cause to discharge him.

Despite a CBA provision making arbitration awards final and binding, the School Committee appealed the award to Plymouth Superior Court on the grounds that it required the employer to violate the law and violated public policy.  Superior Court Judge Cosgrove rejected the School Committee’s arguments and confirmed the arbitration award on September 18, 2012.  The School Committee then appealed to a three-judge panel of the Massachusetts Appeals Court, which upheld the Superior Court ruling last week.  In summarizing its published opinion, the Appeals Court stated:

O’Sullivan’s unlicensed status alone did not automatically eliminate his rights, and … absent termination pursuant to §42, he retained certain collective bargaining rights, including the right to file a grievance and request an unpaid leave of absence. We also conclude that the arbitrator did not exceed her authority in deciding that O’Sullivan was entitled under the CBA to the one-year unpaid leave of absence to try to fulfil his licensing requirements.

The School Committee has the right to seek further appellate review of the case by petitioning the Supreme Judicial Court.  Otherwise, according to the arbitrator’s award, the School Committee must reinstate Mr. O’Sullivan to his position and make him whole for any loss of pay and benefits.