BLUE HILLS REGIONAL DISTRICT SCHOOL COMMITTEE vs. MYRTLE R. FLIGHT & another. [Note 1]

GREANEY, J. This appeal raises questions concerning the scope of an award that an arbitrator may fashion when, in arbitration proceedings pursuant to G. L. c. 150E, Section 8, he determines that a school committee has violated the terms of its collective bargaining contract with a public school education association by failing to promote a particular teacher to an administrative position because of her sex.

The relevant facts, taken from the record and the arbitrator's decision, are these. The grievant is Myrtle R. Flight, a tenured teacher at the Blue Hills Regional Vocational-Technical School, who had served as department head of the health services and culinary arts divisions at the school. In the spring of 1977, she and thirty-seven others applied for the posted position of assistant director, vocational subjects. [Note 2] The school's superintendent-director (superintendent), who had previously worked closely with Flight, interviewed several of the candidates, but did not interview Flight. The superintendent ultimately recommended a male from outside the Blue Hills Regional staff for the job, whom the school committee subsequently appointed.

At the time of the appointment, the association and the committee were parties to a collective bargaining agreement which, by its terms, was effective for the period between September 1, 1976, and August 31, 1978. Flight grieved her failure to receive the promotion on the basis that subsections 13.3 and 13.5 of Art. XIII of the agreement had been violated. Subsection 13.3 provided that in dealing with promotions the school committee would give "due weight" to the professional background and attainments of

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each applicant, including length of service in the school system, and that "[w]hen, in the opinion of the Committee, all other factors are substantially equal, preference will be given to qualified teachers already employed by the Committee . . . ." Subsection 13.5 of the agreement provided that "[a]ppointments will be made without regard to race, creed, color, religion, nationality, sex or marital status." Flight's grievance was not redressed at the first level of the grievance procedure provided by the agreement, and the superintendent denied relief at the second level, "apparently without explanation." At the third level, before the school committee, the superintendent presented a written comparison of the qualifications of Flight and the successful male applicant. This evaluation indicated that Flight held undergraduate degrees in medical-secretarial science and health services management, whereas the successful applicant possessed undergraduate degrees in engineering and industrial technology. It also showed that both candidates held master's degrees in administration of occupational education, that both had satisfied State certification requirements for the position, and that both possessed extensive teaching experience and backgrounds in the administration of vocational curricula. The superintendent's evaluation expressed his opinion that the male applicant's "background and experience are of far greater value to a bona fide vocational curriculum . . . than that of Mrs. Flight whose background consists mainly of the health-secretarial field." In denying the grievance, the committee stated that the appointee's "qualifications far outweighted those of any other candidates for [the] position."

Following the committee's action, Flight's grievance was submitted to arbitration in accordance with the agreement; the issues before the arbitrator were framed as they are set forth in the margin. [Note 3] After concluding that the grievance

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was arbitrable, the arbitrator reviewed the qualifications of Flight and the appointee and received testimony from the superintendent. He determined that Flight's qualifications were, at the least, substantially equal to the appointee's, that they both satisfied the posted requirements for the position, and that the superintendent's not appointing Flight proceeded from unfounded sex-stereotyped assumptions, which the committee implicitly adopted by accepting the superintendent's recommendation. Those assumptions related to the perceived capability of the two candidates to deal with safety hazards in shop classes, with budget matters, and with trade and union representatives. The arbitrator also found that the superintendent had underrated Flight's experience in the vocational area by wrongly assuming that she had worked with programs which were in "typically female areas."

Upon an analysis of the whole case, the arbitrator concluded that Flight had been the victim of sex discrimination. As the primary award, he ordered that she be promoted to the position she sought, retroactively effective as of July 1, 1977, and that she be paid the salary differential between the jobs, with nine per cent interest from July 1, 1977, to the date of her appointment. As an alternative award, in the event that a court should determine that he lacked the power to order the promotion, the arbitrator ordered the school committee and the superintendent to conduct a de novo review of the grievant's and appointee's qualifications, and, if Flight's qualifications were found to be substantially equal to the appointee's, to promote her retroactively to the position and to pay the salary differential with interest.

Pursuant to opposing motions to vacate and to confirm the arbitral award, [Note 4] a judge of the Superior Court entered a

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final judgment, [Note 5] ordering the committee to appoint Flight to the position retroactively effective as of July 1, 1977, and to pay her the salary differential from that date until the date of her appointment, with interest from September 18, 1978, at the rate of eight per cent. The committee has appealed from the modified judgment which confirmed the award, and the association and grievant have cross appealed from the portion of the judgment that altered the arbitrator's award of interest.

1. The school committee's brief does not directly challenge the arbitrability of the grievance. [Note 6] Rather, the committee contends that enforcement of the award would intrude into an area that is reserved to its judgment. The

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grievant and the association assert that the nondelegability doctrine does not limit the arbitrator's authority to enforce in the public sector a specific contractual antidiscrimination provision by ordering the grievant's appointment. [Note 7]

The nondelegation doctrine is rooted in the statutory authority conferred by the Legislature on local school committees to manage the public schools. G. L. c. 71, Sections 37 and 38. General Laws c. 71 Section 16, extends the same prerogratives to the school committees for regional school districts. "By long established legislative policy school committees are given general management of the public schools including the election and dismissal of teachers . . . The success of a school system depends largely on the character and ability of the teachers. Unless a school committee has authority to employ and discharge teachers it would be difficult to perform properly its duty of managing a school system." Davis v. School Comm. of Somerville, 307 Mass. 354, 362 (1940). In the area of personnel, this authority has been interpreted to include the nondelegable and plenary power to make specific appointments of principals (Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. 522, 526-528 [1978]), to determine tenure for teachers (School Comm. of Danvers v. Tyman, 372 Mass. 106, 111-113 [1977]), to change the duties or rank of a teacher entrusted with special managerial authority (Downey v. School Comm. of Lowell, 305 Mass. 329, 331 [1940]), and to abolish supervisory positions no longer

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necessary to the efficient conduct of the schools (School Comm. of Hanover v. Curry, 369 Mass. 683, 684-685 [1976]; School Comm. of Braintree v. Raymond, 369 Mass. 686, 690 [1976]). In exercising their power of appointment, school committees have an affirmative duty "in the interest of the public to select the person . . . whom they [have] judged best fitted for [the position]." Jantzen v. School Comm. of Chelmsford, 332 Mass. 175, 177-178 (1955). These decisions and others (see cases collected in School Comm. of West Springfield v. Korbut, 373 Mass. 788, 795 [1977]), support the conclusion that the final appointment and reappointment of permanent academic personnel lie within the school committee's "zone of management prerogative over educational policy" which cannot be delegated to an arbitrator or be made the subject of an arbitration award which compels a school committee to surrender its discretion to a third party. School Comm. of Boston v. Boston Teachers Local 66, 378 Mass. 65, 72 (1979). See School Comm. of Danvers v. Tyman, 372 Mass. 106, 113 n.5 (1977).

Although a school committee cannot be compelled without its explicit consent to delegate its power to select for a management position the person it deems best qualified to serve the needs of the school system, "there is no reason why . . . [it] may not bind itself to follow certain procedures precedent to the making of any such decision." Id. at 113. Accord, Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Assn., 372 Mass. 116, 120 (1977); School Comm. of West Bridgewater v. West Bridgewater Teachers' Assn., 372 Mass. 121, 122 (1977); School Comm. of New Bedford v. New Bedford Educators Assn., 9 Mass. App. Ct. 793, 797-800 (1980). Adherence to requirements which provide some assurance that the selection process will be fairly conducted mitigates the risk of harsh, abrupt, and uninformed decisions. The contract clauses involved in this case go beyond setting procedural requirements for the selection; both confer important substantive rights. Despite their substantive characteristics, there is no valid reason why a

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school committee cannot obligate itself to arbitrate whether a management appointment has been tainted by discriminatory considerations. As the Supreme Court of the United States has said in a related context with regard to the private sector, "the grievance-arbitration machinery of [a] . . . collective-bargaining agreement [provides] a relatively inexpensive and expeditious means for resolving a wide range of disputes, including claims of discriminatory employment practices." Alexander v. Gardner-Denver Co., 415 U.S. 36, 55 (1974). [Note 8] A provision in a collective bargaining agreement which prohibits discrimination in any phase of the employment relation safeguards a fundamental right shared equally by employees working in a shop or in a schoolhouse and one which cannot be withdrawn from an arbitral forum on the theory that arbitration of the issues arising under such a clause might deal with the ultimate question of job entitlement. Thus the question of the arbitrability of the grievances asserted in this case was properly submitted to the arbitrator, and once he concluded that the issue was arbitrable, "he [could] pass on the question whether the school committee adhered to its obligations." Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Assn., 372 Mass. at 120.

However, that a grievance involving an antidiscrimination clause is arbitrable does not insulate the arbitrator's award from judicial scrutiny. An established distinction exists between the power of a court to examine the merits of

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the arbitrator's decision and its power to examine the propriety of enforcing the award. Judicial inquiry into the soundness of the arbitrator's resolution of the facts is rare and is typically exercised only to correct gross misconduct by the arbitrator (see, for example, the grounds for the vacation of an arbitrator's award enumerated in the first, second, and fourth subsections of G. L. c. 150C, Section 11 [a]). These restraints recognize that an arbitrator's competence pertains primarily to the law of the workplace with which courts lack familiarity, that the fact-finding process in arbitration is not equivalent to judicial fact-finding, and that the usual rules and procedures common to civil trials are ordinarily unavailable in arbitration. They also acknowledge the need for a speedy and technically unencumbered process to resolve labor-management disputes. See generally Gould, Labor Arbitration of Grievances Involving Racial Discrimination, 118 U.Pa.L.Rev. 40, 47-48 (1969).

Whether an arbitrator's remedy should be enforced is open to a broader inquiry. See Gorman, Labor Law c. 25 (1976). The authority for a court to refuse to enforce an award because its performance would contravene the law derives in part from statute, in particular G. L. c. 150C, Section 11(a)(3), which requires vacation of an award if an arbitrator has "rendered [an order] . . . requiring a person to commit an act or engage in conduct prohibited by state or federal law," and in part from the doctrine that the resolution of statutory, constitutional, and policy issues is a primary responsibility of the courts which often requires for its proper discharge a judicial forum capable of balancing various competing interests. Cf. Alexander v. Gardner-Denver Co., 415 U.S. at 57. As was stated in UAW. Local 985 v. W.M. Chace Co., 262 F. Supp. 114, 117 (E.D. Mich. 1966): "it does not follow that . . . [the arbitrator's] finding makes it unnecessary for the court to look beyond his opinion when confronted with a question of . . . [State] law . . . . In looking beyond the opinion, the Court is not attempting to second-guess the arbitrator. It is actually concerned with the lawfulness of its enforcing the award

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and not with the correctness of the arbitrator's decision" (emphasis in original).

In the instant case, literal enforcement of the substantive relief given in either branch of the award would contravene the nondelegability doctrine by compelling or virtually compelling [Note 9] the school committee to appoint the grievant to the position. As such the award is unlawful and cannot be enforced. At the same time, we must recognize that a blanket refusal to permit arbitrators to fashion meaningful remedies for the violation of nondiscrimination clauses in public employment contracts would seriously undercut the effectiveness of arbitration as a means to enforce an individual's rights to equal employment opportunities (cf. Trustees of Tufts College v. Volpe Constr. Co., 358 Mass. 331, 340 [1970]), and would not serve this Commonwealth's firm condemnation of discrimination among employees "in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification." G. L. c. 151B, Section 4, as amended by St. 1965, c. 397, Section 4. See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 137-139 (1976); Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229-232 (1978). We think that the policies that encourage arbitration of employment discrimination claims and that reserve the appointment of administrative school personnel to the school committees can,

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on the facts in this record, be best accommodated by remanding the matter to the arbitrator to fashion a new remedy. Upon remand, the arbitrator must avoid forcing the parties to a predetermined destination -- rather "as the neutral, . . . [he should] decide the dispute [in a way] which will once again place . . . the contracting parties on that path which treats males and females equally." Rosenberg, Sex Discrimination and the Labor Arbitration Process, 30 Lab. L.J. 102, 116 (1979).

In drafting the remedy, the arbitrator may, if he deems it appropriate, declare the position to be vacant and require the school committee and superintendent to begin the selection process anew. [Note 10] The award must respect the superintendent's statutory right to nominate candidates for election by the school committee (G. L. c. 71, Section 38), and the committee's contractual and statutory rights to establish current qualifications for the position, to weigh the applicants' qualifications, to determine whether in-house candidates have credentials substantially equal to those of individuals from outside the system and to make the appointment based on its assessment of the best interests of the school system. It is within the arbitrator's authority, however, to take such steps as he deems necessary to assure that the process is fair and nondiscriminatory. In this regard, he may establish procedures to increase the flow of accurate job-related information, to eliminate the use of biased material, and to insure that the superintendent and the committee refrain from labeling certain areas of the vocational curriculum as "traditionally male" or as comprising "bona fide" vocational subjects while downgrading others on the view that they are "traditionally female." [Note 11] The arbitrator may

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also impose procedures to insulate the evaluation process from unsupported assumptions about the candidates' abilities that are based solely on sex stereotyping, [Note 12] and such other safeguards as are deemed practicable to insure that the grievant's application will be "appraised in good faith and on equal terms with all others." School Comm. of Southbridge v. Brown, 375 Mass. 502, 506 (1978). Since almost three years "have passed since the time of the grievance,

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the arbitrator may find it necessary to take additional evidence in order to take into account current conditions . . . [including] the present collective bargaining agreement." School Comm. of New Bedford v. New Bedford Educators Assn., 9 Mass. App. Ct. 793, 803 (1980). Finally, we note our view of the decision that the arbitrator did not find that the conduct of the superintendent or the school committee amounted to "a pretense or device actuated by personal hostility." School Comm. of Braintree v. Raymond, 369 Mass. at 689. We, therefore, do not address the question whether in such a callous situation an arbitrator could order a specific appointment. See Sweeney v. School Comm. of Revere, 249 Mass. 525, 530 (1924).

2. The remaining issues concern the compensation component of the award. The arbitrator interpreted the agreement to require that the grievant be compensated for not having been paid as an assistant director from July 1, 1977, until the time the appointment is made. He therefore ordered the committee to pay the grievant the pay differential for that period. The payment of the salary differential from July 1, 1977, until the date of the award (June 20, 1978) was within his powers, and is separable from his unauthorized determination that the grievant be promoted. See School Comm. of Braintree v. Raymond, 369 Mass. at 691; School Comm. of New Bedford v. New Bedford Educators Assn., supra at 803. The order that compensation be paid after that date constitutes an award of future compensation which is invalid for the reasons discussed at length in the New Bedford decision at page 803. However, from June 20, 1978, until the new award is fashioned, the arbitrator, depending on his resolution of the case upon remand, may award damages which compensate the grievant for the wrong suffered by her but which do not effectively compel the appointment. Within these bounds the arbitrator retains a reasonable measure of discretion to strike a balance between the rights of the parties. Lawrence v. Falzarano, 380 Mass. 18, 28 (1980).

We think it was also within the arbitrator's power to commence the accumulation of interest as of July 1, 1977,

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and to set the interest at nine per cent. An arbitrator's award of interest, when made as a component of an award, is an integral part of the total remedy that he fashions and, as such, is not subject to the statutory provisions which apply to court-awarded interest on contract claims. [Note 13] See G. L. c. 231, Section 6C, as last amended by St. 1974, c. 224, Section 2; Turcotte v. DeWitt, 333 Mass. 389, 392 (1955). See generally Marlborough Firefighters, Local 1714 v. Marlborough, 375 Mass. 593, 600-601 (1978); Watertown Firefighters, Local 1347 v. Watertown, 376 Mass. 706, 717-719 (1978). "Provisions of law applicable to judicial actions and proceedings do not necessarily apply to arbitrations. Parties who submit their controversies to arbitration forgo those provisions and leave all questions of law and fact to the arbitrators. The right to interest involves questions of fact and law that are within the purview of the arbitrators." Eager, The Arbitration Contract and Proceedings Section 131 (1971). Interest included as part of the arbitrator's award must therefore be distinguished from interest added by a court pursuant to an award which is silent on the point. See Marlborough Fire-fighters, supra at 601 n.7. Even by analogy to G. L. c. 231, Section 6C, interest on a contract claim runs from the date of the "breach," which the arbitrator in this case found to be the date on which Flight was denied the appointment, and as to this point we note, "[t]he terms of the award shall control as to payment of interest on the sum awarded." Eager, The Arbitration Contract and Proceedings, supra at Section 143. Unless the interest component of the award exceeds the power of the arbitrator or requires performance of an act prohibited by law (G. L. c. 150C, Section 11[a][3]), the fact that "the award . . . grants relief such that it could not grant or would not be granted by a court . . . shall not be ground for

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vacating or refusing to confirm the award." Id. (a)(5). Interest at nine per cent on the salary differential between July 1, 1977, and June 20, 1978, is due to the grievant; interest on any damages awarded after remand should be established by the arbitrator.

3. Coming to disposition, we have found that the award of retroactive salary with nine per cent interest from the date the wrong occurred (July 1, 1977) until the date of the arbitrator's award (June 20, 1978) was proper. We have also concluded that the balance of the award should be vacated. The judgment entered in the case is not susceptible of modification in part and reversal in part. Accordingly, the judgment must be reversed and the entire case remanded to the Superior Court for remand by that court to the arbitrator so that he may fashion a new remedy consistent with this opinion. The Superior Court will retain jurisdiction of the case for such further proceedings under G. L. c. 150C as may be necessary, and for the entry of a new final judgment consistent with this opinion.

So ordered.