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SCHOOL COMMITTEE OF CHICOPEE vs.
CHICOPEE EDUCATION ASSOCIATION
SCHOOL COMMITTEE OF CHICOPEE vs. CHICOPEE EDUCATION ASSOCIATION.
No. 10-P-387.
November 8, 2010. - September 8, 2011.
School and School Committee, Arbitration, Termination of employment. Arbitration, School committee, Vacating
award, Authority of arbitrator, Collective bargaining. Contract, Collective bargaining, Arbitration. Labor, Collective
bargaining, Arbitration. Public Employment, Collective bargaining.
CIVIL ACTION commenced in the Superior Court Department on October 15, 2008.
The case was heard by Peter A. Velis, J., on motions for judgment on the pleadings.
Gordon D. Quinn for the plaintiff.
Matthew D. Jones for the defendant.
Present: Berry, Smith, & Green, JJ.
SMITH, J.
In June of 2007, Chicopee high school teacher Gary Sroka was terminated by the school committee of Chicopee
(school committee) for improper use of a sick day and insubordinate conduct. Represented by the defendant Chicopee
Education Association (association), Sroka grieved the dismissal under his union's collective bargaining agreement,
and the matter proceeded to arbitration. Following a hearing, the arbitrator issued a decision reinstating Sroka to his
former position. The plaintiff school committee sought to vacate the award, but a Superior Court judge denied its
application and instead confirmed the award. The school committee now appeals, arguing that the arbitrator's decision
both exceeded his authority and violated public policy.
Background. The following facts, taken from the arbitrator's decision, are undisputed. Sroka began working at
Chicopee high school in 2000, when the school committee hired him as a special education teacher. A few years later,
he was assigned to teach social studies and history. Before the events leading to his dismissal, Sroka already had
established a disciplinary history at the school for using profanity in front of students and other teachers. [FN1] The
school was also aware that Sroka suffered from various mental health issues. During the 2004-2005 school year, he
received an accommodation in his school schedule because of a diagnosis of attention deficit hyperactivity disorder. In
2005, Sroka took a leave of absence to recover from depression, and in early 2007, evidence was presented in
connection with a profanity-related suspension that he suffered from anxiety.
Against this backdrop, the events leading up to Sroka's dismissal are as follows. In May, 2007, the school department
of Chicopee planned to hold an "armed services career day" on May 21, 2007, mandating attendance by all high school
students and teachers. Fueled by his negative feelings about the United States' involvement in the war in Iraq, and
based on his belief that the event would send an inappropriate message to young and impressionable students, Sroka
decided to organize a protest of it. To that end, he, his son, and some friends made protest signs and pamphlets to hand
out during the event. When he arrived at school on May 21, however, Sroka noticed that the school building had been
vandalized with antiwar comments. Knowing he would be a suspect, Sroka called off the protest, and informed the
school's principal, Roland R. Joyal, Jr., that he did not commit the vandalism but that he knew who probably did. After
his conversation with Joyal, Sroka again changed his mind about the protest and, seeing that his students had already
gone to the event, took his protest signs and protested from the event's perimeter. At some point thereafter, Joyal
noticed the protest and told Sroka to return to class. Sroka did so, but shortly thereafter felt suddenly anxious and went
home sick.
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That night, Sroka called in sick for the following day. He also got in touch with his son's friend, Barry Scott, who he
believed committed the vandalism. Sroka convinced Scott to turn himself in, and in a show of support, Sroka
accompanied Scott to court the next day. While there, Sroka continued his protest outside the courthouse, and told a
reporter that "a little defacement of a public building is a lot less than the crimes being committed at Chicopee High
School by trying to seduce these young children to join the military."
The following day, May 23, 2007, Sroka reported to school as usual. As the day progressed, however, Sroka began to
engage in odd behavior. While monitoring a test, he posted a sign stating: "Rogue Teacher Beware." Later, when he
noticed that his classroom computer was missing, he wrote his department chairperson a note stating that he believed a
crime had been committed, that the police should be notified, and that "I believe an incredible 'moral' crime is about to
be [committed] by the administration of [Chicopee High School]. (Know I forgive you and will pray for you all!)"
A short time later, during the school lunch break, Sroka apparently felt compelled to continue the protest. Joyal later
found him walking outside, barefoot, with his pant legs partially rolled up, wearing an olive green military coat and
hat, bearing a protest sign, and beating a bongo drum. When Joyal informed Sroka that it was time for him to return to
teach his class, Sroka insisted, "I'm not Gary Sroka, I'm Sergeant Pepper." At that point, Joyal observed that Sroka did,
indeed, appear to be dressed as a member of Sergeant Pepper's Lonely Hearts Club Band. [FN2] Despite several
further warnings that his refusal would constitute insubordination and result in disciplinary action, Sroka continued in
what he described as his "guerilla theater" efforts, and headed toward the center of Chicopee. He was placed on
administrative leave later the same day, and in June of 2007, his employment was terminated for insubordinate
conduct, improper use of a sick day, and his prior disciplinary record.
Following the May 23 incident, Sroka sought professional help and was diagnosed with bipolar II disorder. His treating
psychiatrist, Dr. Bennett Gaev, reported to the school committee by letter dated June 18, 2007, that prior to their initial
June 5 appointment, Sroka was "hypomanic." In deposition testimony, Dr. Gaev further opined that antidepressant
medication Sroka had been taking for years to treat depression "was wrong and may have been responsible for ...
Sroka's behavior on May 22nd and May 23rd." Sroka was prescribed mood stabilizing medication to treat his disorder,
and has since reported feeling better than he has in years.
a. The arbitration proceeding. In March, 2008, the parties, proceeding under the grievance procedure outlined in the
collective bargaining agreement between the school committee and the association, submitted the matter to arbitration.
In addition to two days of hearings, the record before the arbitrator included the deposition testimony of Dr. Gaev, as
well as extensive posthearing briefs. The parties focused their arguments in large part on the significance of Sroka's
alleged mental disorder. The association maintained that once the school committee had notice of Sroka's mental
health issues, it should have engaged in further inquiry. Thereafter, if the issues raised were determined to be valid, it
could have provided an appropriate accommodation for Sroka's disability. The association argued in the alternative that
the dismissal was simply too harsh a penalty for Sroka's conduct, especially if mitigated by the mental health
component. The association lastly remarked that Sroka's past record should not have been considered because it was
unrelated to the incidents precipitating the dismissal.
The school committee, on the other hand, argued that Sroka should be held fully accountable for his conduct. As to the
sick day, it noted that Sroka indisputably was engaged in several activities, including going to the courthouse and
using an online grading system, that indicated he was not, in fact, sick at that time. As to his "guerilla theater" activities
and ultimate refusal to teach his class, the school committee argued that any mental health problems suffered by Sroka
had not been proven. In support of that contention, it suggested that Dr. Gaev's letters and deposition testimony were
unreliable and deserved no evidentiary weight because they had been offered in an attempt to help Sroka get his job
back. [FN3] The school committee also pointed to Dr. Gaev's only having met with Sroka for two short sessions, and
his failure to take into account key elements associated with hypomanic episodes, as described in the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV), in reaching
his diagnosis of bipolar II disorder. Finally, the school committee cited previous arbitration decisions in arguing that an
employee's mental health lapse may not alter a disciplinary sanction properly resulting from the conduct in question.
b. The arbitration decision. The arbitrator issued his decision in September, 2008. He framed the issue, as stipulated to
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by the parties, as follows: "Did the School Committee have just cause to discharge the grievant, Gary Sroka, in June
2007? If not what shall be the remedy?" In a footnote to the reference, the arbitrator cited to the paragraph of the
agreement providing that "[n]o teacher will be disciplined ... without just cause." The arbitrator then found that
notwithstanding the medical evidence, just cause for discipline existed as to both the apparent sick leave violation and
the insubordination. He nevertheless concluded that, "in line with principles of progressive discipline," the punishment
imposed was not commensurate with the violations committed. In reaching that conclusion, the arbitrator noted that
Sroka's disciplinary history was completely unrelated to the present offenses, and that Sroka had not been given prior
warnings about this type of behavior. He further observed that the excessive level of discipline "suggests that indeed
the [school committee] took offense at what it considered Sroka's embarrassing and inappropriate antics."
The arbitrator next considered the effect, if any, of the medical evidence of Sroka's diagnosis of bipolar II disorder on
the outcome of the case. Discounting the evidence on the one hand, the arbitrator stated that Sroka "must face up to his
wrongdoing and accept the consequences." On the other hand, and "[a]ssuming without deciding," the arbitrator
observed that Sroka likely was entitled to an accommodation for his mental illness under the Americans with
Disabilities Act, and that, under Massachusetts law, he could not be fired for conduct that was the result of that
medical condition. In the end, the arbitrator reinstated Sroka to his former position, because "under either analysis," the
discipline imposed on Sroka was too harsh.
c. Application to vacate the award. The school committee thereafter applied in the Superior Court pursuant to G.L. c.
150C, § 11, to vacate the award, arguing that the arbitrator exceeded his authority and that the award violated public
policy. In support of its application as to the former, the school committee cited G.L. c. 71, § 42, the teacher dismissal
statute, arguing that it precludes an arbitrator from performing a just cause analysis of a termination. [FN4]
Under G.L. c. 71, § 42, as appearing in St.1993, c. 71, § 44, a teacher with professional status may be dismissed only
for "inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure ... to satisfy
teacher performance standards ... or other just cause." The statute further provides that a teacher may seek review of a
dismissal by arbitration, and places the burden on the school committee to prove the "just cause" that served as grounds
for dismissal. In reviewing a dismissal, an arbitrator is to "consider the best interests of the pupils in the district and
the need for elevation of performance standards." G.L. c. 71, § 42. [FN5] In accordance with that statute, the school
committee claimed that once it had proven Sroka engaged in the conduct in question, the arbitrator had no choice but
to uphold the dismissal, and in reinstating Sroka, the arbitrator improperly substituted his judgment for that of the
school committee.
In support of this proposition, the school committee relied heavily on Justice Cordy's concurring opinion in School
Dist. of Beverly v. Geller, 435 Mass. 223, 231-232 (2001) (Geller ). In Geller, the court applied the statute in the
context of a teacher who had been dismissed for conduct unbecoming a teacher after the school district fielded
multiple complaints that the teacher had used physical force against his sixth grade students. Id. at 226. The court
issued a plurality opinion, [FN6] with Justice Cordy deciding that proper interpretation of the statute "precludes the
arbitrator from conducting a further 'just cause analysis' (e.g., weighing the teacher's prior record against the
misconduct for the purpose of justifying a different sanction) once he has found that one of the enumerated grounds
for has been proved." Id. at 234. A majority of the court, however, did not agree with Justice Cordy's interpretation of
the statute.
d. The motion judge's decision. On cross motions for judgment on the pleadings, a Superior Court judge confirmed the
award. In his decision, the judge concluded that under the deferential standard applied to arbitrators' decisions, absent a
showing of fraud, the arbitrator's decision in this case was indisputable. In response to the school committee's citation
to Geller and G.L. c. 71, § 42, the judge observed that Geller is a plurality decision in which "more questions [are] left
open than answered." He also distinguished the case on the basis of the underlying facts. As to public policy, the judge
ruled that the school committee had failed to make out a prima facie showing because it could not point to a "defined,
dominant, and visible" public policy that had been violated. The school committee timely appealed, restating the
arguments it advanced before the motion judge.
2. Discussion. It is a well-settled principle of law that arbitration awards are subject to a narrow scope of review, and
that "[a]bsent fraud, errors of law or fact are not sufficient grounds to set aside an [arbitration] award." Plymouth-
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Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990). "The strong public policy favoring
arbitration requires us to uphold an arbitrator's decision even where it is wrong on the facts or the law, and whether it
is wise or foolish, clear or ambiguous." Boston v. Boston Police Patrolmen's Assn., 443 Mass. 813, 818 (2005).
Consistent with the limited scope of arbitral determinations, the Supreme Judicial Court recently cautioned that a court
"should not ... undertak[e] what in effect [is] an independent, de novo evaluation of the evidence before the arbitrator."
School Comm. of Lowell v. Robishaw, 456 Mass. 653, 665 n. 11 (2010).
In addition to these principles of judicial review, the language of G.L. c. 71, § 42, further provides that dismissal
decisions be subject to judicial review as provided in G.L. c. 150C. Pursuant to G.L. c. 150C, § 11, a judge in the
Superior Court "shall vacate" an arbitrator's award on a party's application if, among other enumerated grounds, "the
arbitrators exceeded their powers or rendered an award requiring a person to commit an act or engage in conduct
prohibited by state or federal law." School Comm. of Lowell v. Robishaw, supra at 660, quoting from G.L. c. 150C, §
11.
A foundational step in any arbitration case is determining the source and limit of an arbitrator's authority. Ordinarily,
the authority of an arbitrator is derived entirely from the parties' collective bargaining agreement, and is accordingly
limited by the terms of that agreement. See School Comm. of Waltham v. Waltham Educators Assn., 398 Mass. 703,
706-707 (1986); Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. at 1007. In this case, the
arbitrator and the motion judge proceeded on the assumption that the arbitrator's authority was so derived. A majority
of the court in Geller made clear, however, that under the circumstances of this case, those assumptions were faulty.
Before diverging in their opinion regarding the limits G.L. c. 71, § 42, places on arbitral review, Justice Cordy, in his
concurring opinion, and Justice Cowin, in her dissent, each observed that § 42 serves as the source and limit of an
arbitrator's authority in teacher dismissal cases, regardless of the provisions of a collective bargaining agreement. See
Geller, 435 Mass. at 230 n. 5 (Cordy, J., concurring) (notwithstanding citation to § 42 in the reference, "the parties
could not properly authorize the arbitrator to act beyond his statutory authority in any event"); id. at 240 (Cowin, J.,
dissenting) ("The authority to arbitrate the dismissal of a teacher with professional teacher status is derived from
statute rather than from contractual agreement"). Thus, despite the court's plurality opinion, Geller holds that in the
context of teacher dismissal, an arbitrator may not "ignore the limits imposed by statute," and craft a decision
grounded in the authority provided by a collective bargaining agreement. [FN7] Ibid. See School Comm. of Lowell v.
Vong Oung, 72 Mass.App.Ct. 698, 705 (2008).
It is undisputed, and apparent from the record, that the arbitrator in this case crafted his decision and award entirely
from the assumption that the parties' collective bargaining agreement controlled, and apparently unaware of the
authority, standards of review, and dictates of G.L. c. 71, § 42. The statute is mentioned nowhere in the arbitrator's
decision, nor are the considerations of the "best interests of the pupils in the district and the need for elevation of
performance standards." The decision is instead based entirely on the premise that the collective bargaining agreement
is the source and scope of authority. Thus, unlike in Geller, the decision here was fatally flawed from the start, as the
arbitrator never even attempted to apply § 42 review to the case. Viewing the case through the wrong lens, he
necessarily exceeded the authority provided to him under the statute. We need go no further in our analysis. [FN8] The
judgment of the Superior Court confirming the arbitration award is vacated, and a new judgment shall enter vacating
the award. [FN9]
So ordered.
FN1. In 2004, Sroka was issued a written warning for raising his voice and swearing to his social studies supervisor. In
2005, he was given a three-day suspension for telling a student, "I don't want to take this attitude shit from you," and
telling another student, "[Y]ou're fucking out of here," while pointing at the door. Later, in April of 2007, Sroka
received another three-day suspension, reduced from five days, for uttering the word "shit" in the classroom.
FN2. A Beatles album released in 1967, with cover art depicting the members of the band dressed in military attire.
FN3. Dr Gaev admitted in his deposition testimony that he penned a November 5, 2007, letter to enable Sroka "to get
his job back."
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FN4. On the basis of the record before us, we are unable to determine if the application of G.L. c. 71, § 42, was raised
during the arbitration proceedings.
FN5. General Laws c. 71, § 42, was enacted as part of the Education Reform Act of 1993. See School Dist. of Beverly
v. Geller, 435 Mass. 223, 225 n. 1 (2001) (Cordy, J., concurring). The relevant text of the statute is as follows:
"A teacher with professional teacher status, pursuant to section forty-one, shall not be dismissed except for
inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the
teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just
cause.
"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...
"At the arbitral hearing, the teacher and the school district may be represented by an attorney or other representative,
present evidence, and call witnesses and the school district shall have the burden of proof. In determining whether the
district has proven grounds for dismissal consistent with this section, the arbitrator shall consider the best interests of
the pupils in the district and the need for elevation of performance standards."
FN6. Justice Cordy's opinion was joined by Chief Justice Marshall and Justice Sosman. Justice Cowin's dissenting
opinion was joined by Justice Greaney and Justice Spina. Justice Ireland concurred with Justice Cordy in result only,
deciding the case on the grounds of public policy.
FN7. The association argues that, pursuant to G.L. c. 150E, § 8, as amended by St.1978, c. 393, § 39, the collective
bargaining agreement is, in fact, the arbitrator's source of authority. That statute provides that where elected by an
employee, a collective bargaining agreement shall be the "exclusive procedure for resolving any ... grievance involving
... dismissal ... or termination notwithstanding any contrary provision of ... sections forty-two through forty-three A ...
of chapter seventy-one."
While perhaps appealing on its face, the association's argument is necessarily defeated by the Supreme Judicial Court's
explicit conclusion to the contrary in Geller, namely that the provisions of G.L. c. 71, § 42, supersede a collective
bargaining agreement, see infra, and "the established canon of statutory construction that 'general statutory language
must yield to that which is more specific.' " Silva v. Rent-A-Center, Inc., 454 Mass. 667, 671 (2009), quoting from
TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 18 (2000).
FN8. Because our resolution of this case does not require us to reach the question "left open by the Supreme Judicial
Court in [Geller ]," School Comm. of Lowell v. Vong Oung, 72 Mass.App.Ct. at 705, we offer no opinion on the limits
of an arbitrator's review of a dismissal decision under G.L. c. 71, § 42. We nevertheless acknowledge the difficult task
that awaits an arbitrator, should this case proceed to a second arbitration, in deciphering the limits in review posed by
the statute.
FN9. Because we conclude that the award must be vacated, we need not review the school committee's claim that the
award violated public policy.
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