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Education Laws and Regulations

Summary of Arbitration Awards
Issued Pursuant to General Laws Chapter 71 And Related Judicial Decisions

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II. Description of Awards

E. Procedural and Arbitrability Issues 9

General Laws c. 71, § 41, provides, in part:

For the purposes of this section, a teacher, school librarian, school adjustment counselor, school social worker or school psychologist who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two.

General Laws c. 71, § 42, provides, in part:

(2) A teacher who has been teaching in a school system for at least ninety days 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 the superintendent, as the case may be, and to present information pertaining to the bases for the decision and to the teacher's status. . . . .

(3) A teacher with professional teacher status may seek review of a dismissal decision within thirty days after receiving notice of his dismissal by filing a petition for arbitration with the commissioner . . . . .

  1. Braintree Public Schools — June 12, 1995

    Teacher in Title I program had no right to arbitrate her alleged dismissal (non-renewal) because she did not have professional teacher status [PTS]. [Nine pages]
    AAA# 11-390-01762-94Arbitrator Robert M. O'Brien

  2. Lynn Public Schools & P. H.10 April 11, 1995 and July 31, 1995

    In the first decision, the arbitrator ruled that the 30-day period to file a petition runs from the date the teacher receives the actual notice of dismissal, and not from the date the teacher receives the notice of intent to dismiss. Since the district sent a notice of its intent to dismiss, but did not follow up with a notice to dismiss, the arbitrator computed the 30 days from the date the teacher met with the superintendent and the termination became effective. [Six pages.] In the second decision, the arbitrator overturned the teacher's dismissal and ordered that the teacher be reinstated with no loss of pay or benefits. [20 pages]
    AAA# 11-390-00573-94Arbitrator Paul J. Dorr

  3. Salem Public Schools & M. B. — May 1, 1996

    The arbitrator did not have jurisdiction over the alleged demotion of a head teacher. The arbitrator found that the head teacher was not a supervisor under the Education Reform Act [ERA] because, in this district, head teachers were not responsible for evaluating or disciplining teachers. The arbitrator relied, in part, on the definition of a supervisor found in the National Labor Relations Act. [13 pages]
    AAA# 11-390-01203-95Arbitrator Sarah Kerr Garraty

  4. Barnstable Public Schools — August 7, 1995 and August 22, 1996

    The delivery of the dismissal notice to the teacher's guardian, while the teacher was mentally incapacitated, did not constitute delivery of notice required by the statute. On the merits, the arbitrator upheld the dismissal because the teacher was not fit to return to work. [11 pages]
    AAA# 11-390-00167-95Arbitrator James S. Cooper

  5. Plymouth Public Schools — September 19, 1996

    When this award was issued G.L. c. 71, § 41 provided that a teacher who has served in the school district for three consecutive years was entitled to PTS. Since PTS attached at the conclusion of the third year of service, and there was no obligation to actually begin teaching in the fourth year, the teacher had PTS and could seek arbitration. [33 pages]
    Section 41 has been amended to return to the pre-ERA language requiring service for "the three previous consecutive school years." It is not clear if cases arising under the amended statute will follow the case law under the old statute and require that a teacher start the fourth year in order to acquire PTS.
    AAA# 11-390-0574-94Arbitrator Garry J. Wooters

  6. Fall River Public Schools & K. G. — December 10, 1996, and March 24, 1997

    In the first (interim) opinion, the arbitrator determined that he did not have jurisdiction to hear matters that occurred between 1985, when the teacher stopped teaching, and July 1994, when the superintendent dismissed the teacher as part of a system reorganization and for budgetary reasons. [11 pages]
    In the final opinion, the arbitrator determined that the teacher's dismissal was not arbitrable under the ERA because her extended break in service meant that she did not have PTS in July 1994. [12 pages]
    AAA# 11-390-1593-94Arbitrator Garry J. Wooters

  7. Greater Fall River Voc. School District Committee & E. S. — Sept. 13, 1997

    The technical drawing teacher had a right to seek arbitral review of his suspension although he had not attained PTS or exhausted his contractual rights under the collective bargaining agreement. [25 pages]
    AAA# 11-390-02403-96Arbitrator Sarah Kerr Garraty

  8. Falmouth Public Schools — January 21, 1998

    The director of human resources was not a supervisor under the ERA and not protected by section 41. The arbitrator found that a supervisor under the ERA is a person with authority over educators or the educational process, relying, in part, on G.L. c. 71, § 38G and the Department's certification regulations. The director did not have educational supervisory authority entitling him to arbitration under section 41. In addition, given the director's job duties and functions, he could not seek arbitration as a teacher with PTS. [11 pages]
    AAA# 11-390-01300-97Arbitrator Diane Zaar Cochran

  9. Dedham Public Schools — July 31, 1998

    Chapter I teachers that held certificates in elementary education were not entitled to PTS and could not "bump" non-PTS elementary school teachers. [Joint decision, 27 pages].
    AAA# 11-390-01698-95Arbitrators (2) Gary D. Altman
    AAA# 11-390-01977-96and Mark L. Irvings

  10. Worcester Public Schools & V.K. — November 3, 1998

    Upheld teacher's dismissal for insubordination. The district terminated a teacher for calling in sick at the start of the school year in late August in order to attend an athletic event in Australia. G.L. c. 71, §41 does not require a teacher to begin his or her fourth year of teaching in order to receive Professional Teacher Status. The teacher, who had completed three consecutive years of teaching, had acquired PTS and could be dismissed only for just cause. Falsifying sick leave constituted insubordination, which was just cause for dismissal under G.L. c. 71, §42. [26 pages]
    AAA# 11-309 00208-98Arbitrator Richard G. Higgins

  11. Boston Public Schools & J.R.- June 29, 1999

    Arbitrator ruled that suspension decision was not arbitrable, pursuant to G.L. c. 71, §42D, as no petition for arbitration was filed with the Department of Elementary and Secondary Education within 30 days of notice of the suspension, but dismissal was arbitrable as a timely § 41 petition was filed. The arbitrator ruled that an educator who is dismissed due to operation of a law other than c. 71, §§ 41 and 42 (in this case, G.L. c. 279, §30, providing for dismissal of public employees convicted of certain felonies) is still entitled to the arbitration rights of those sections. Arbitrator also found that where a petitioner requests to reopen an arbitration within one year of the date it was administratively closed by the AAA, such request is timely. [12 pages]
    AAA# 11-390-01338-95Arbitrator Sarah Kerr Garraty

  12. Everett Public Schools & D. D. — September 4, 2001

    The arbitrator found that the teacher had not been constructively dismissed from her position, and was therefore not entitled to statutory arbitration. The teacher was suspended with pay from her position as a reading teacher based on her failure to provide any services to many of the classes to which she was assigned. Months later, after being placed on unpaid leave, the teacher agreed to submit to a psychological evaluation to establish her fitness to return to work, but ultimately refused to participate in the exam. The arbitrator found that as the school remains willing to restore the teacher to her position, with full wages, benefits, and seniority as soon as the teacher establishes that she is fit to return to work, the school has not discharged the teacher. The arbitrator also noted that the teacher missed her opportunity to arbitrate the suspension by failing to file a timely request for arbitration pursuant to c. 71, § 42D. [12 pages]
    AAA# 11-390-00364-01Arbitrator Nancy E. Peace

  13. Attleboro Public Schools — November 26, 2001

    Upheld non-renewal of teacher's contract. The Arbitrator determined as a preliminary matter that the teacher did not have professional teacher status (PTS) and was not entitled to statutory arbitration because she taught under a Massachusetts certificate for only two consecutive school years. The Arbitrator rejected the teacher's argument that her service in the district as a long-term substitute in the 1996-97 school year should count toward attainment of PTS. The teacher had a valid out of state certificate for the position but at the start of the year, she had no Massachusetts certificate. Halfway through the year, she received a Massachusetts certificate, but not one appropriate for the position in which she was employed. The Arbitrator agreed with the district's argument that only the years of service while in the possession of a valid Massachusetts certification, appropriate to the position being filled, can count toward PTS. [13 pages]
    AAA# 11-390-00118-01Arbitrator Diane Zaar Cochran

  14. Cambridge School Committee & P.B. — April 28, 1999

    The arbitrator did not have jurisdiction over the alleged demotion of an administrator. In 1992 the administrator was removed from his position as Technical Coordinator of Occupational Education at a school and reassigned as an "administrator on assignment" at no reduction in salary. In the new position, the administrator was neither involved in personnel matters nor directed the work of other employees. In 1996, the administrator was notified that he was being transferred into a teaching position and his salary was being reduced. In response to the 1996 notice, the administrator filed a request for statutory arbitration. The arbitrator held that the 1992 transfer might have been arbitrable under G.L. c. 71, § 41, but as the administrator had not filed a request within 30 day of receiving notice, he had forfeited his right to arbitrate that transfer. As to the 1996 transfer, the arbitrator found that it was a demotion, but not one arbitrable under c. 71, §41, because the individual demoted was an administrator, but not a "supervisor" for the purposes of § 41. [26 pages]
    AAA# 11-390-02656-96Arbitrator Nancy Peace

  15. Lawrence Public Schools & W.C. — October 12, 1999

    The assignment of an employee from the principal position at Lawrence High School to the principal position at an elementary school in the district was not a demotion and therefore not arbitrable under M.G.L. c. 71, §41. The principal's contract with the district contained a clause that allowed the superintendent to reassign or transfer the principal to another professional administrative position or other position for which he is qualified. The arbitrator held that the individual employment contract is controlling with respect to what constitutes a demotion. Since the transfer was not a demotion, it is therefore not arbitrable under M.G.L. c. 71, §41. [29 pages]
    AAA# 11-390-00289-99Arbitrator Nancy E. Peace

  16. Lawrence Public Schools & R. H. — March 9, 2001

    In a bifurcated hearing, the arbitrator determined, as a preliminary matter, that teacher had not attained "professional teacher status" under c.71, §41, and therefore had no right to challenge his dismissal under §42. Teacher worked for the school district for 3 ½ years but was not certified in Massachusetts his first year. The arbitrator held that this year could not count toward his professional teacher status, citing case law under the previous "tenure" statute. In addition, teacher's final year of service did not count because he taught only through February and then was placed on involuntary paid administrative leave for the rest of the year. Relying on case law under the previous statute, the arbitrator ruled that a teacher who is on administrative leave for part of the school year, whether voluntarily or involuntarily, is not actively serving the school district for that school year, and may not count that year toward PTS. [20 pages]
    AAA# 11-390-00820-97Arbitrator Sarah Kerr

  17. Georgetown Public Schools & F.G. — November 22, 2002

    In a bifurcated proceeding, the arbitrator initially addressed the issue of arbitrability and determined the matter was not arbitrable because the teacher had failed to file a petition for arbitration with the Commissioner of Education within 30 days of receiving notice of a suspension. The arbitrator resolved a factual dispute as to when the notice of suspension had been received in favor of the School Committee. [13 pages]
    AAA# 11-390-00978-2Arbitrator Tammy Byrnie

  18. Lynn Public Schools & C.L.B. — May 12, 2006

    The arbitrator determined that involuntary removal from a non-supervisory position of Special Education [IEP Team] Chairperson and assignment to a teaching position with a reduction in work days and compensation constituted a demotion within the meaning of Chapter 71, Section 42. The arbitrator also determined that the demotion occurred in March when the individual received a letter notifying her that the involuntary transfer would occur immediately and not in July when she was notified of her assignment for the following school year. [17 pages]
    AAA# 11-390-02370-05Arbitrator Garry Wooters

  19. L.P. and Agawam Public Schools — September 5, 2007

    Arbitrator found the principal had voluntarily resigned her position, and was not entitled any back pay or benefits. The principal was notified in September 2006 that her contract would not be renewed upon its expiration in June 2007. On November 14, 2006, the principal left the school, telling the superintendent that "she was leaving," turning in her school identification, and taking her personal belongings. Two days later, the principal called the superintendent's office and reported that she would be out sick. The arbitrator found that the principal had voluntarily resigned, and that the school district was not obligated to follow the termination procedures found in MGL ch. 71, $ 41. The arbitrator relied on the testimony of numerous witnesses who testified that the principal intended to leave her job, including the testimony of a new employer who testified that the principal had accepted a job with the employer prior to November 14, 2006. (14 pages)
    AAA# 11-390-00243-07Joseph Daly, Arbitrator

  20. West Boylston Public Schools and S.J. — August 31, 2012

    Upheld dismissal of a teacher at the end of the teacher's fourth year at the school, as a non-PTS teacher. The teacher had received a non-renewal notice in March of her third year of teaching due to performance concerns. She and the District agreed that she would continue teaching on probation for another year, with an opportunity to prove herself to a new principal, and that she would be employed as a non-PTS teacher. The teacher had voluntarily signed an agreement to waiver her right to professional teacher status for an additional year. The arbitrator found that the waiver was enforceable and did not violate public policy, reasoning that the one-year extension of the probationary period was fair, was entered into without coercion, and did no violence to the underlying purpose of the statute. [9 pages].
    AAA# 1139-0147-12Arbitrator Michael W. Stutz



Last Updated: February 12, 2016
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