Greater Lowell Technical High School School Committee v. Greater Lowell Regional Teachers Association.

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.

7