DENNIS-YARMOUTH REGIONAL SCHOOL COMMITTEE [Note 1] vs. DENNIS TEACHERS ASSOCIATION & others. [Note 2]

WILKINS, J. This is the second of three cases we decide today relating to the collective bargaining rights of a nontenured teacher who has received a notice of nonrenewal of employment. Although the case presents a somewhat different procedural posture from School Comm. of Danvers v. Tyman, ante, 106 (1977), the substantive questions are not significantly different.

The association argued that the nonrenewal of the contract of a nontenured teacher could be the subject of arbitration under the collective bargaining agreement between the school committee of Dennis and the association. The judge rejected that argument. For the reasons we have expressed in our opinion in School Comm. of Danvers v. Tyman, supra at 111-112, we agree with his conclusion that the decision not to renew the contract of the nontenured teacher could not be the subject of final and binding arbitration. However, it appears that a claim of arbitration was made at least in part on the basis of the school committee's failure to follow its contractual obligations concerning teacher evaluation procedures and the maintenance of teacher files. In this respect the grievances sought to be arbitrated are similar to those pressed in School Comm. of Danvers v. Tyman, supra, and, for the reasons we expressed there, we conclude that arbitration of an asserted failure of a school committee to adhere to its contractual obligations in these respects is permissible. Accordingly, the judgment in favor of the regional school committee, which is more fully described below, must be modified.

In July, 1971, the school committee of Dennis elected

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Mary E. Malloy to serve as an elementary schoolteacher for the school year 1971-1972. Her contract was renewed for the two succeeding school years. On April 11, 1974, she was informed by letter that she would not be reappointed for the 1974-1975 school year. If she had been reappointed, she would have acquired tenure pursuant to G. L. c. 71, Section 41. Malloy filed a grievance alleging that the school committee had violated certain portions of the collective bargaining agreement between the school committee and the association and sought renewal of her contract and back pay. The school committee responded that the failure to renew Malloy's contract was not a grievance recognized under the collective bargaining agreement. In January, 1975, the association demanded arbitration; an arbitrator was appointed in March, 1975; and a hearing was held before him in April, 1975.

The association and the school committee stipulated that the issue before the arbitrator was: "Is the dispute the Association seeks to arbitrate on the merits, which involves the non-renewal of Miss Malloy, a non-tenure teacher, a grievance, and if so, is it arbitrable?" In the stipulation the association represented that "[o]n the merits the Association will ask the Arbitrator to interpret and apply Article III, Sections E and F and determine whether such Sections were violated, and if he finds violations to determine what remedy shall be applied." [Note 3] The arbitrator in making his award in June, 1975, passed on the question of arbitrability, which was the only issue argued before him. In his analysis, he focused solely on the question whether nonrenewal of the contract of a nontenured teacher was a proper subject of arbitration under the collective bargaining agreement, and he concluded that it was. He gave no consideration to the question whether the school committee's failure to follow the agreement in

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maintaining teacher files or in conducting teacher evaluations was a proper subject of arbitration. [Note 4]

On July 30, 1975, the regional school committee filed a complaint in which it sought to vacate the arbitrator's award, to stay further arbitration, to enjoin enforcement of the award, and to obtain a declaration that it had no obligation to arbitrate its nonrenewal of Malloy's contract. The matter was not submitted for decision for almost a year. In August, 1976, the judge filed a detailed memorandum of decision in which he agreed with the regional school committee. A judgment was entered that day substantially as requested in the regional school committee's complaint. We granted the association's application for direct appellate review of its appeal from that judgment.

The association first contends that the school committee sought judicial relief prematurely. It argues that the arbitration proceeding must be concluded on its merits before the question of the arbitrability of the grievance may be submitted for consideration in the Superior Court. This proposition does not comport with the plain language of G. L. c. 150C, Section 2 (b), inserted by St. 1959, c. 546, Section 1. Section 2 (b) authorizes a Superior Court judge to stay an arbitration proceeding, either commenced or threatened, if he finds "(2) that the claim sought to be arbitrated does not state a controversy covered by the provision for arbitration . . . ." For the purposes of G. L. c. 150C, Section 2 (b), we regard an agreement to arbitrate a dispute which lawfully cannot be the subject of arbitration as equivalent to the absence of a controversy covered by the provision for arbitration. Because the judge concluded, as matter of law, that the dispute was not a controversy which could be covered by a provision for arbitration, his decision to stay further arbitration concerning the nonrenewal of Malloy's contract was consistent with his statutory authority. An appeal from such an order is authorized

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by G. L. c. 150C, Section 16 (2). See School Comm. of Agawam v. Agawam Educ. Ass'n, 371 Mass. 845, 846 (1977). Thus, as the judge correctly ruled, judicial relief was not sought prematurely.

As we have indicated, the judge was correct in concluding that the decision of the school committee not to renew Malloy's contract was not subject to review and redetermination in arbitration proceedings. Consequently, his decision to vacate the award which expressed a contrary view was correct. We need not decide whether the parties agreed to submit the question of Malloy's tenure to arbitration (a point which would be for the arbitrator in any event) because, even if they did so agree, the school committee would not be bound by an agreement to arbitrate its tenure decision. School Comm. of Danvers v. Tyman, supra at 112-113.

On the other hand, as we have said, the alleged failure to follow certain practices agreed to by the school committee is arguably a grievance under the terms of the collective bargaining agreement. The question of the arbitrability of these asserted grievances properly may be submitted to an arbitrator and, if the arbitrator concludes that the issue is arbitrable, he may pass on the question whether the school committee adhered to its obligations. If any violation is found, relief may be granted within the scope indicated in our opinions in School Comm. of Danvers v. Tyman, supra at 114, and School Comm. of W. Bridgewater v. West Bridgewater Teachers' Ass'n, post, 125-127.

The judgment must be modified. Those portions which (a) vacate the award, (b) permanently enjoin its enforcement, (c) declare that the association does not have any right to have the nonrenewal of Malloy's contract of employment submitted to arbitration, (d) dismiss the action as to the director of the regional office of the American Arbitration Association, and (e) deny costs to either party may stand. However, the portion of the judgment staying all further arbitration proceedings is vacated and a new judgment shall be entered ordering further arbitration of

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the association's claim for arbitration of grievances expressed on behalf of Mary E. Malloy in connection with arts. III E and F of the collective bargaining agreement. See G. L. c. 150C, Section 2 (b).

So ordered.