School District of Beverly v. Geller

Ireland, J.

(concurring in the result, with whom Cordy, J., joins). In vacating the arbitrator’s award, I would adopt the rationale of the Appeals Court in School Dist. of Beverly v. *237Geller, 50 Mass. App. Ct. 290, 294-297 (2000).1 In particular, I believe that the arbitrator exceeded his authority in reaching a conclusion that offends our strong public policy against the use of physical force by a teacher against a student. See Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990), quoting Lawrence v. Falzarano, 380 Mass. 18, 28 (1980) (arbitrator “may not ‘award relief of a nature which offends public policy’”). Notwithstanding competing public policies, an “arbitrator’s award, finding no just cause for discharge and reinstating a teacher who on three separate occasions forcibly pushed, shoved, jabbed, dragged, knocked down, or slammed into a locker three different sixth-grade students,” cannot stand. School Dist. of Beverly v. Geller, supra at 297. “At a time when every competent teacher, administrator, parent and concerned citizen is seeking ways to award and retain good teachers and to eliminate poor teachers, it is anomalous indeed for this court to put its stamp of approval on an arbitrator’s decision that . . . takes a mighty step backwards in its educational implications.” Iowa City Community Sch. Dist. v. Iowa City Educ. Ass’n, 343 N.W.2d 139, 152 (Iowa 1983) (Rey-noldson, C.J., dissenting).

“[Bjecause the public policy ‘[exception] allows courts to by-pass the normal heavy deference accorded to arbitration awards and potentially to “judicialize” the arbitration process, the judiciary must be cautious about overruling an arbitration award on the ground that it conflicts with public policy.’ ” Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 604 (2000) (BSI), quoting E.I. DuPont de Nem-ours & Co. v. Grasselli Employees Indep. Ass’n of E. Chicago, 790 F.2d 611, 615 (7th Cir.), cert, denied, 479 U.S. 853 (1986). With this concern in mind, this court fashioned a three-pronged test to limit significantly the scope of the public policy exception. See BSI, supra at 604-605. First, the public policy in question “must be well defined and dominant, and is to be ascertained ‘by reference to the laws and legal precedents and *238not from general considerations of supposed public interests.’ ” BSI, supra at 604-605, quoting Massachusetts Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1995) (Massachusetts Highway Dep’t). Second, “the conduct involved cannot be ‘disfavored conduct in the abstract,’” BSI, supra at 605, quoting Massachusetts Highway Dep’t, supra at 17, but must constitute “disfavored conduct Which is integral to the performance of employment duties” (emphasis in original). BSI, supra. See Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 861 F.2d 665, 671 (11th Cir. 1988), cert, denied, 493 U.S. 871 (1989). Third, we require “a showing that the arbitrator’s award reinstating the employee violates public policy to such an extent that the employee’s conduct would have required dismissal.” BSI, supra.

First, in what is almost too obvious for discussion, ample statutory, administrative, and judicial sources make unmistakably clear, the protection of children, particularly those in elementary school, is a “well defined and dominant” public policy of the Commonwealth. Second, the teacher’s abusive conduct is integrally related (not to mention wholly antithetical) to his employment duties as an educator and role model charged with facilitating the intellectual and moral development of young children. Third, I believe the arbitration award of reinstatement “conflicts with the clear public policy of protecting the children of our state.” State v. AFSCME, Council 4, Local 2663, 59 Conn. App. 793, 800 (2000) (vacating arbitrator’s reinstatement of employee who drove children entrusted to care of State agency after employee pleaded guilty to felony charges of possession of narcotics with intent to sell).

In reaching my conclusion, I wish to emphasize the following. Here, the teacher’s misconduct goes “to the heart of the worker’s responsibilities,” Massachusetts Highway Dep’t, supra at 17, quoting United States Postal Serv. v. American Postal Workers Union, 736 F.2d 822, 823, 825 (1st Cir. 1984). See State v. AFSCME, Council 4, Local 387, 252 Conn, 467, 479 (2000) (Peters, J., concurring) (fact that egregious misconduct occurred while on job distinguishes it from cases of employee misconduct where courts upheld arbitral awards reducing sanctions against employees). Part of a teacher’s responsibilities *239include the maintenance of a safe environment that is conducive to their students’ growth. Given that reality, common sense suggests that it is wholly inappropriate to place school children in daily contact with a teacher who has repeatedly inflicted physical abuse on his students. See State v. AFSCME, Council 4, Local 2663, supra at 806; School Dist. of Beverly v. Geller, supra at 297 (reinstating teacher might jeopardize “the physical safety of members of the public”). Because, in my opinion, “the arbitration award violates public policy, ‘we are obliged to refrain from enforcing it.’ ” Massachusetts Highway Dep’t, supra at 16 n.5, quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766 (1983).

As I have echoed on previous occasions, see Barnett v. Lynn, 433 Mass. 662, 667-668 (2001) (Ireland, J., concurring) (advance notice of danger to children should hoist added responsibility on public authorities); Brum v. Dartmouth, 428 Mass. 684, 709-710 (1999) (Ireland, J., concurring) (“I believe that parents should be entitled to believe that the school officials to whom they entrust their children will not be deliberately indifferent . . . and do nothing when made aware of an imminent threat to the safety of their children”), I can think of no public policy capable of justifying decisions (by either arbitrators, administrative agencies, or courts) that expose school children to known risks of physical harm. Where the court must balance two competing policies, i.e., one favoring arbitration and one protecting our children, I do not hesitate to conclude that the latter outweighs the former.

Because of my view that the arbitrator exceeded his statutory authority in this case by reaching a conclusion that offended public policy, I do not find it necessary to reach the broader question of the arbitrator’s authority to modify the sanction of dismissal discussed in Justice Cordy’s concurring opinion.